^ 



KANSAS--THE LAW OF SLAVERY. 



F 685 
.C59 
Copy 1 



SPEECH 



OF 



HON. DANIEL "CLARK, 



\K-- 



OF NEW HAMPSHIUE. l-'l^:^ 



Delivered in the Senate of the United States, March 15, 1858. 



Mr. Prksident : t am much obliged to the 
honorable Senator from Missouri for the assu- 
rance that this is not to be an effort of physical 
strength ; that he is not disposed to crowd this de- 
bate into unseasonable hours. I have been here 
in my seat in the Senate since twelve o'clock, 
and I am not, perhaps, physically well prejiared 
to go on at great length to-night ; but if the de- 
bate is to continue, I am prepared with the ma- 
terials around me to go so far as the Senate 
may be pleased to listen. I have refrained from 
mingling in this debate earlier than the present 
time. The question was put to me, " v.'hether I 
intended to speak on the subject, when it was 
before the Senate in a different form?" My 
reply was, " that I did, at some time, if conve- 
nient, intend to speak ; but th.at I intended to 
speak on the subject when it came before the 
Senate in a practical form ; when there was 
something proposed to be done ; when the bill 
to admit Kansas with the Lecompton Constitu- 
tion should be here." It is here now; it is be- 
fore us by a report from the Committee on Terri- 
tories ; and I propose to discuss the policy of the 
admission of Kansas as a State with the Lecomp- 
ton Constitution. 

Before I go further, I wish to ask the honor- 
able Senator from Missouri, who seems to have 
the charge, m some sort, of this debate, whether 
he wishes to qualify the language of his report 
on the ninth page, where he says : 

'• Such are the characters, su'^h are the objects, 
' and the dangerous results of the opponents of 
■* the Lecompton Constitution?" 

Mr. GREl'.N. Th-e only qualification I make, 
is to be understood from its context. I am speak- 
ing of those in Kansas — of course, not of honor- 
able Senators w-ho oppose it here. 



Mr. CLARK. That is the very point I want to 
note. The language goes that length. That is 
the fair interpretation. 

Mr. GREEN. Take the context and see. 

Mr. CLARK. I take it that every part of the 
report means something ; and if the Senator had 
expressed what he intended by the previous par- 
agraph in the report, he would not have added 
this clause. He meant something more. That Is 
the fi^ir rule of interpretation. The previous 
paragraph was confined to persons in Kansas. 
This goes the whole length, and applies to all 
opponents of the Lecompton Constitution. I 
wished to ask whether the language was not 
varied intentionally, because I desired to know 
whether 1 stood here charged as a culprit, or 
whether I stood here as a Senator on this floor, 
having equal rights with the Senator from Mis- 
souri. 

Mr. President, it seems to me that we have so 
much wholesale denunciation in this report, and 
otherwise, in regard to those people who oppose 
the Lecompton Constitution, that it is perfectly 
legitimate and fair for me to make the inquiry 
how far the gentleman meant to go ; and I desire 
to make the further inquiry of him, whether he 
means to apply this language to citizens of my 
State, or any portion of them in Kansas who are 
there now. 

Mr. G'REEN. I did not know that there was 
a citizen of the Senator's State in Kansas. If so, 
be has no business there, and ought to go out. 

Mr. CLARK. The gentleman un-?erstands what 
I mean, and I cannot be turned aside. He must 
have knoTsn that I meant citizens from New/ 
Hampshire who have gone into Kansas, and whrf 
have a right to be there. 

Mr. GREEN. Very well ; if the Senator mea/ 



\ 



2 



those who -^-ere once citizens of New Hampshire, 
and are now citizens of Kansas, I say, that if 
Governor Walker and Secretary Stanton speak 
of them, I speak of them. I speak of those men 
they describe. 

Mr. CLARK. Thea I understand the gentle- 
man to have based his whole assertion on what 
has been said by Governor Walker and Secretary 
Stanton, and he goes no farther. I say to him, 
he is not warranted in making that wholesale 
assertion in regard to the opponents of the Le- 
CQmptoa Constitution, because Governor Walker 
does not say any such thing; he does not name 
a man, he does not say that one citizen in Kan- 
sas who went from my State has been guilty of 
any rebellion, or insurrection, or disorder, what- 
ever. Now, I tell the Senator from Missouri, there 
are men, acquaintances, old neighbors of mine, 
in Kansas — men who have gone from my State — 
not from the purlieus of the great cities, but hon- 
orable, respectable men — tradesmen, tnechanics, 
men who cultivate the soil. They are in Kansas 
now, and are opposing this Constitution, but 
they are peaceable and orderly men. If the 
Senator from Missowri did not know that these 
men wei'e in rebellion, he ought not to have 
made this sweeping charge. 

Sir, I am disposed to hold the honorable Sen- 
ator, so far as I may, responsible for the truth of 
the statement he makes in his report. He pre- 
sents the evidence here, and we may judge upon 
the evidence which he presents ; but we cannot 
know whether that is the only evidence, or wheth- 
er it is a partial statement ; and hence I ask him 
whether he proposes to apply thatxStatement to 
the citizens of my State. I put that question 
because I liold, as was said by the gentleman 
himself, the other day, that men are not to be 
condemned by classes : men are to be condemn- 
ed, or upheld, or praised, as individuals. 1 agree 
that there is great danger of wrong, when you 
undertake to condemn men by classes. You may 
go into any portion of the country, and you will 
find good men of one class, and bad men of the 
same class. You may go into almost every sect 
of religion, and find good men of that sect, and 
bad men of that sect. Why may you not find 
good men in Kansas, I ask the honorable Sena- 
tor, opposed to the Lecompton Constitution ? 
There may have been men in that Territory who 
have been guilty of some indiscretion — I do not 
say there have not been, for 1 do not know, and 
I do not admit that there have — but what I mean 
to say is, that the Senator should not, in this 
report, make these charges, because they go out 
to the country, they go on to the files of the Sen- 
ate, they stand here as part of the country's 
record, when they are not supported by the 
facts. 

It is no apology for the gentleman's statement 
in regard to these men, it l)rings no consolation 
to them, to have him get up here and state that, 
if Governor Walker meant to condemn them, he 
means to condemn them ; that if Mr. Stanton 
spoke of them, he means to speak of them. Who 
are the men that he speaks of? All the oppo- 
nents of the Lecompton Constitution put in a 
mass, put together, and condemned, in Kansas, 



as he says now, and as I bad some reason to be- 
lieve. 

Now, Mr. President, before I go further, I wish 
to ask the Senator from Virginia who last ad- 
dressed the Senate, if he will permit me to do so, 
a question which may facilitate the debate. I 
wish to ask him, on what he grounds the law of 
Slavery, vvhether upon the common law, or the 
law of nations ? so that I may be prepared to 
discuss definitely and distinctly, point after 
point, his positions. I do not wish to ramble in 
the debate. I was not quite sure — if I had been, 
I should not ask the honorable Senator — on what 
law he did ground it ; though I understood him 
to ground it upon the common law and upon the 
law of the civilized world — that is, the law of 
nations; but I did not understand whether he 
went any further. H' he will inform me that I 
am right in my inference, that he did ground it 
on the common law or on the law of nations, and 
did not go any further, that will answer entirely 
my purpose. 

Mr. MASON. I understand the honorable 
Senator to ask me on what I ground the law of 
Slavery. I would answer the honorable gentle- 
man by saying, that I am not aware that there 
is any other law that pertains to Slavery than 
those laws which pertain to every other species 
of property. 

Sir. CLARK. Then I am obliged, in order to 
get any species of information, to ask on what 
law he grounds the right to other property — 
whether the common law or the law of nations — 
because I get no information, as I understand the 
Senator's answer now. It is altogether too indef- 
inite for my purpose. The Senator is under no 
obligation to answer. Perhaps he has not made 
up his mind. 

Mr. MASON. I certainly did not intend lo 
treat the Senator with the slightest discourtesy. 
Mr. CLARK. Not the least. 
Mr. MASON. I will answer, with great 
pleasure, any question in my power. I assumed, 
in the course of my speech to-day, that the Afri- 
can slave stood to the general law of the coun- 
try — meaning the common law — exactly in the 
relation of any other property ; that ic required 
no law to create it, it required no law to regulate 
it, and no law to protect it, no more than it re- 
quired a law to create slavery in au ox, or to 
regulate or protect it. Now, if the honorable 
Senator asks me on what ground I place the law 
of Slavery, I would remit him at once to the 
common law, which recognises such a thing as 
property. The honorable Senator from Maine 
referred to the first interview that took place be- 
tween the Deity and the first man, and he said 
that was Blackstone's theory. I would not in- 
terfere with it, for that was w"hat I understood to 
be the higher law. We know that cannot be 
administered on e.arth, except 'by a theologist. 

Mr. Clark. I win state my purpose in ask- 
ing the question of the Senator. I understood 
him distinctly to state that Slavery was ground- 
ed on the common law, or existed ijy the common 
law. I am prepared with authority after author- 
ity, from 1694 down to the present time, in Eng- 
land ; I am prepared with authority after author- 



ity in our State courts ; I am prepared with the 
authority of the United States courts, that Sla- 
very does not exist by the common law. I am 
prepared to prove that it is not established here 
by the law of nations, and I wanted to be pre- 
pared for any other point on which the gentle- 
man rested. That was the reason of my ques- 
tion. 

Mr. MASON. Will the gentleman allow me to 
put a question to him ? 

Mr. CLARK. Certainly I will do so. 

Mr. MASON'. Suppose a man should come 
here from Liverpool, and bring with him a valu- 
able horse wortii §10,000, and that horse were 
to be taken from him by the hand of violence, 
would not our courts interpose to recover his 
horse for him ? and would it not be because it 
was recognised as the property of the man who 
brought it here ? 1 want to know upon what 
law on the continent of America you recognise 
the property of the Englishman who brought the 
horse over; to what do you trace it? My posi- 
tion was, that the common law recognised prop- 
erty in whatever was property coming from 
another nation ; and when these negroes were 
brought from Africa, the condition of property 
attached to them in Africa was recognised by 
the common law. Precisely as the law of na- 
tions recognised property iu the horse, the com- 
mon law here gave property in the horse ; the 
common law so recognised it, be it a horse or 
an ox. 

Mr. CLARK. T understood the gentleman to 
start with a question, but he wound up with as- 
sertion and argument. I do not know whether 
he wishes me to answer the question or not. If 
he does, I will say to him that the common law 
recognises property in a horse, but I will also 
state to him distinctly, and prove it before I get 
through, that the common law does not recog- 
nise property in man, and I think I shall make 
the distinction broad and clear. 

Mr. MASON. If you prove that, you will re- 
fute my proposition. 

Mr. CLARK. Yes; I think I shall. I shall 
endeavor to do it. I have not a doubt where I 
shall come, if I succeed. 

Mr. MASON. I do not fear it. 

Mr. CLARK. I know the gentleman does not 
fear anytaing. I do not wish that he should fear 
anything I should say. It is not my purpose to 
say anything that would put him, or anybody 
else, in fear. We are here for the purpose of dis- 
cussion ;''and if it be the pleasure of the Senate 
and of the honorable Senator, I will pursue the 
line of argument which I had proposed to myself. 

I wish to take my departure on this voyage 
from the Constitution, and I wish to be clearly 
understood; because I shall differ materially 
from many gentlemen that have spoken before. 
I may advance some new ideas — ideas which 
have not been referred to ; but I wish to say, I 
commit nobody around me — not one man in this 
Senate — to anything that I may have to say. If 
it is heterodox, I say it on my own responsibility. 
If it is orthodox, I say it on authority which I 
have about me. I do not know that anybody 
will agree with me, except the Senator from 



Connecticut, [Mr. Foster,] in one part, because 
he has already foreshadowed his principles in 
that particular, and on that we agree. 

But some things are taken for granted or 
seem to have been passed in silence, which I am 
going to controvert. One of them was the posi- 
tion taken by the Senator from Virginia, [Mr. 
Mason,] and it was also taken by the Senator 
from' Virginia, [Mr. Hunter,] in his speech yes- 
terday, that we have no right, in discussing this 
matter, to look into the Lecompton Constitution 
any further than to see that it is republican. I 
deny it entirely. I claim the right to look that 
Constitution in the face, to look at it from the 
top of its head to the sole of its foot, to examine 
it thoroughly, to pass my judgment upon it de- 
liberately as a Senator of the United States, and 
to say whether, upon an examination of that 
Constitution — not alone, but with other things, 
(or alone, if I please) — I will admit Kansas 
under that Constitution, or not. I start in the 
proof of what I have to say, with the Constitu- 
tion of the United States. Here is the article, 
and here is the point of my departure : 

" Sec. 3, Art. 4. New States may be admit- 
j ' ted by the Congress into this Union." 

New States may be admitted, Mr. President. 

I That implies, if Congress pleases. They may be 

j admitted by Congress, and they may not, where 

i Congress pleases not to admit them. That is a 

! matter left io the sound discretion of Congress, 

! to judge of it when a State proposes to .come in, 

! not only with reference to the new States, but 

! with reference to the old States ; to examine the 

Constitution which she brings ; to examine the 

institutions under which she comes ; and if they 

find anything in the Constitution of the new 

State which is derogatory or injurious to the old 

States, which is derogatory to the institutions 

t under which we live, which will mar the pros- 

I perity of the new State even, then we have the 

■ right to reject her if we choose. If this were not 

so, our discretion would be limited; but in the 

[ Constitution there are only two or three limits, 

and then the whole matter is left in the sound 

j discretion of Congress. In this very section we 

find, first : 

" New States may be admitted by the Congress 
' into this Union." 

1 What next ? " but no new State shall be form- 
' ed or erected within the jurisdiction of any 
' other State." 

There is one limitation. Congress may admit 
new States, but shall not make a new State out 
of another State. That fixes that point. It then 
1 goes on : " nor any State be formed by the junc- 
i ' tion of two or more States, or parts of States, 
i ' without the consent of the Legislatures of the 
j ' States concerned, as well as of the Congress." 

Here are two limitations. Congress may ad- 
I mit new States, or may not; but they shall not 
j erect a new State within the jurisdiction of 
I another State ; nor form a new State out of two 
or more States, without the consent of the Legis- 
latures of those States as well as of Congress. 
Is there anything further ? When you get a 
i little further on, to section four, you find this 
provision : " Congress shall guaranty ? " No, sir, 



Congress does not guaranty. Congress may ad- 
mit new States, but Congress does not guaranty : 
" The United States sliail guaranty to every 
' State in this Union a republican form of gov- 
' ernment." 

Tv'ot alone to the new State which is admitted, 
but the United States, shall guaranty a republi- 
can form of Constitution to all the States. 

Now, 5Ir. President, here are three limitations 
put by the Constitution upon the admission of 
new States. There are no others ; and, as I con- 
tend, the whole matter rests in the discretion of 
Congress, whether to admit new States or not. 
Upon this point, that the power rests in the Con- 
gress of the United States, and in their sound 
discretion, I have an authority. I do not regard 
it as very binding authority. I do not acknowl- 
edge its validity to the whole extent to which 
it goes, but I will take it for what it is worth, 
and honorable Senators may do so too. It is the 
decision of the Supreme Court in the Dred Scott 
case. I will read from it. Speaking of territory, 
it says : 

" It is acquired to become a new State, and 
' not to be held as a colony, and governed by 
' Congress with absolute authority; and as the 
' propriety of admitting a new State is commit- 
' ted to the sound discretion of Copgress " — 

Mark the language. The propriety of admit- 
ting a new Stale i3 committed to the sound dis- 
creition of Congress. 

Here it is laid down, in this very Dred Scott 
decision, that Congress have the power, that 
Congress have the authority committed to their 
sound discretion, with three limitations placed 
upon it by the Constitution, and no others : first, 
that they shall not erect a new State within an 
old State; second, tiiat they shall not form a 
new State out of two or more States, without the 
consent of the Legislatures of the States, as well 
as of Congress ; third, that the United States 
shall guaranty a republican form of government. 
Now, I desire to speak for a few moments upon 
this clause of the Constitution, that Congress 
shall guaranty — no, sir, I use the phrase incor- 
rectly — -that the United States shall guaranty to 
every State in this Union a republican form of 
government- 
Mr. BENJAMIN. I will state to the Senator 
that the form of government and the Constitu- 
tion are two things. The Constitution of the 
United States guaranties that the form of gov- 
ernment shall be republican. It does not speak 
of the Constitution itself. 

Mr. CLARK. I know that it does not say any- 
thing in regard to the States having a republican 
Constitution. I use thp two terms as synony- 
mous, but the phraseology is peculiar: 

" The United States shall guaranty to every 
' State in this Union a republican form of gov- 
' ernment." 

I contend that a State may come into the Union 
without a Constitution, [Mr. Benjamin. Certain- 
ly.] and have a republican form of government. 
Look at the history of that provision of the Con- 
stitution. It was a provision adopted by the 
Convention which framed this Constitution, as 
well for the old as for the new States. It was 



for the security of those old States, as well as 
for the admission of the new, because it was seen 
by those wise men who framed this Constitution 
that there might be intestine divisions — the Con- 
stitution of a State might be overthrown, its form 
of government overthrown, and a form not re- 
publican might be established. In order to pre- 
vent the mischief which would flow to the sev- 
eral States from such a state of things, a provis- 
sion was inserted that the United States should 
guaranty a republican form of government to the 
States. Now if, in Virginia, it could happen that the 
Constitution or form of government, which is re- 
publican, should be overthrown in that old State, 
the United States would be pledged to interfere, 
and guaranty to them a republican form of govern- 
ment ; because it is not according to the theory 
of our Government, nor the genius of our insti- 
tutions, to have a monarchical government, or 
any other form of government than a republican 
government, in any of the States. Mr. President, 
I draw another inference, that such is the con- 
clusion, on a fair interpretation of this article, 
from the position in which it is placed. Section 
four is in these words : 

" The United States shall guaranty to every 
' State in the Union a republican form of gov- 
' ernment, and shall protect each of them from 
' invasion ; and on application of the Legisla- 
' ture, or of the Executive, (when the Legisla- 
' ture cannot be convened,) against domestic 
' violence." 

The whole section was framed for the purpose 
of suppressing violence or irregularities leading 
to the overthrow of a- republican form of gov- 
ernment in any State of this Union. Such, it is 
evident, was its design, from the history of the 
provision. I have here the Madison Papers. They 
are the history, as 3'ou, sir, and honorable Sena- 
tors, well know, of the debates which took place 
in the Convention which adopted the Constitu- 
tion. I find here the provision guarantying a 
republican form of government to all the States 
by the United Staler, in the original draft which 
was presented by Mr. Ptandolph, of Virginia, to 
the Convention. It may be useful, Mr. Presi- 
dent, to look at the history of these matters. You 
can get the meaning the force, and the applica- 
tion of these various provisions of the Constitu- 
tion better by stuilying their history and their 
alteration from time to time, ias they passed 
through the Convention, than in almost any 
other way. You see the source from which they 
came, you see the object for which they were 
offered, you see the various modifications which 
took place as they went along ; and then it ena- 
bles you to judge of the precise bearing they 
may have. J have before me the second volume 
of the Madison Papers, and I find in this volume 
that Jlr. Edmund Randolph, of Virginia, opened 
the main business of the Convention. He came 
forward with a jdan of government, which had 
in it especially these two provisions of the Con- 
stitution: That the Congress may admit new 
States ; and that the United States shall guar- 
anty to every State of this Union a republican 
form of government. They were in his original 
plan. They were, I think, in the plan of Mr. 



Charles Pinckne} , presented afterwards ; but I 
wish only to call your attention, Mr. President, 
to tlie original form, thaf you may see what was 
the draft, what was tlie object, and what was the 
intention of those who brou^hl- it into the Con- 
vention. It stood then, not as it stands now ; 
but it was the eleventh provision of Mr. Ran- 
dolph's plan : 

" Resolved, That a republican form of govern- 
' ernmcnt, and the territory of each State, ex- 
' cept in the instance of a voluntary junction of 
' government and territory, ought to be granted 
' by the United States to each State." 

Here was the object. There was then a con- 
troversy going on in regard to the boundaries of 
States. Virginia made large claims to territory; 
Xew York made large claims to territory ; other 
States made large claims to territory. The object 
of this resolution was not entirely to procure a 
guaranty of its form of government to each State, 
but it was to procure the guaranty of its territory 
as well, to bring in the United States to defend and 
maintain all the boundaries which Virginia had 
a lawl'ul right to. But before debate on this prop- 
osition was through, it was suggested in Conven- 
tion that Congress ought not to be committed to 
a quarrel about territory, and hence that provis- 
ion was struck out. It then went on further to 
say : 

" That Congress shall guaranty' a republican 
' form of government.'' 

And then it was changed to read in this way : 

" Resolved, That a republican Constitution, and 
' its existing laws, ought to be guarantied to 
' each State by the United States." 

That was the form at once assumed in debate. 
It was said by some member of the Convention, 
that he would not like to guaranty the laws of 
Rhode Island, which held a charter under the 
Crown. Some further objection was made, and 
they struck it out. It was for the protection, 
safety, and tranquillity of the old Str.tes, that it 
was put in here, and not with a direct reference 
to the new States. I think Senators go beyond 
the warranty of the Constitution, they go too 
far, when they sa_y that tliis provision was adopt- 
ed with reference to the new States alone, if they 
do say so. I am not certain that anybody has 
said that distinctly, but everybody who has spo- 
ken seems to construe it as peculiarly ajiplicable 
to the new States, and that Congress have no 
further discretion than to see that every form of 
government is republican. I contend that we 
have a right to go much further, and I propose 
to go much further in this debate. I propose to 
look at the Lccompton Constitution from its be- 
ginning to its end. I propose to discuss its pro- 
visions. I propose to say why I object to them, 
and if I can persuade Senators that ray objec- 
tions are well founded, to do so. I have, I think, 
a clear right to do so. 

It will appear further, Mr. President, that this 
provision, tlJat Congress may admit new States, 
was not intended to cramp the discretion of Con- 
gress. Congress may admit new States into the 
Union. Keep the language, Mr. President, if you 
please, in your mind. That was a part of Mr. I 



Randolph's plan, not precisely as it stands here, 
but in these words : 

•' Resolved, That provision ought to be made 
' for the admission of States lawfully srising 
' within the limits of the United States." 

It was not contemplated by anybody, when 
this provision was brought into the Convention, 
nor when it was adopted, as far as 1 have been 
able to trace, that we were to take territory be- 
yond the then territory of the United States, and 
make new States. It was not proposed ; and 
hence this proposition said, in the original draft, 
that " provision ought to be made for the admis- 
' sion of States lawfully arising within the limits 
' of the United States"'— not out of it— " whether 
' from voluntary junction of Government and ter- 
' ritory, or otherwise, with the consent of a num- 
' ber of voices in the National Legislature less 
' than the whole" 

Now, I wish to call the attention of honorable 
Senators to the history of this provision. It 
shows distinctly what was its meaning, and 
what was intended by it. Congress may admit 
new States. The original proposition was, that 
they should admit them out of the then territory 
of the United States. Then it went further : 
there was a proposition before the Convention, 
that Congress should admit new States out of 
the territory of the United States upon an equal- 
ity with the old States. Does anybody pretend, 
will anybody say, that Congress has the right to 
admit a new State on a different footing from the 
old States? I do not say that; yet I will prove 
to you, from the history of these debates, and 
from the various modifications that were made 
to this provision of the Constitution, that that 
provision for putting new States on an equality 
with the old States was struck out upon deliber- 
ation, and upon motion, for the very purpose of 
bringing in new States, if they chose, not upon 
an equality with the old States. I will not go 
through all the various forms this provision 
assumed as it travelled through the Convention. 
I will call your attention directly to the point I 
have in mind. At one time in the progress of 
this debate, the^ proposition in regard to new 
States assumed this form, that Congress may ad- 
mit new States into the Union : 

" If the admission be consented to, the new 
' States shall be admitted on the same terms with 
' the original States." 

Here was a proposition distinctly made to tie 
down the discretion of Congress to the footing of 
the old States ; that they should not have the 
power to admit a new State, unless it cnme in on 
the footing of the old States. I am not contend- 
ing, and do not let me be so understood, that it 
would be wise ; I will not even contend here that 
Congress has the power to admit a new State, 
except on an equal footing with the old States. 
What I am after, is to show that there was a 
provision in the original draft, of the Constitu- 
tion, and upon deliberation, upon motion, upon 
argument pro and con, the Convention struck it 
out, for the very purpose of bringing the "\A'est- 
ern States into the Government on a ditlereut 
footing. Let me read from these debates. They 
are very instructive : 



6 



"Article seventeenth being then taken up" — 
which is this in regard to the new States — "Mr. 
' Gouverneur Morris moved to strike out the two 
' last sentences, to wit : ' if the admission be con- 
' sented to, the new States shall be admitted on 
' the same terms with the original States.' " 

Gouverneur Morris, of Pennsylvania, moved 
to strike out that provision. He did not like it ; 
he did not want new States to come in on an 
equal footing. I will show you, because the 
debate shows it, that he also moved to strike out 
the further provision : 

" But the Legislature may make conditions 
' with the new States concerning the public debt 
' which shall then be subsisting." 

This is the reason he gave for his motion : 

" He did not wish to bind down the Legisla- 
' ture to admit Western States on the terms here 
' stated." 

That is, on equal terms. He did not want to 
bind Congress to do it. They should have a dis- 
cretion. 

" Mr. Madison opposed the motion ; insisting 
' that the Western States neither would nor 
' ought to submit to a union which degraded 
' them from an equal rank with the other States." 

I think there is force in the objection. The 
old States were fearful that the new States 
formed in the Western Territories would grow 
into a large representation ; and it might be, 
they would be able to out-vote the old States by 
and by, as they are very likely to do, if they 
have not already done so. He was fearful of 
that. 

" Mr. Madison opposed the motion ; insisting 
' that the Western States neither would nor 
' ought to submit to a union which degraded 
' them from an equal rank with the other States." 

" Colonel Mason. If it were possible, by just 
' means, to prevent emigration to the Western 
' country, it might be good policy." 

It was not designed then to fill up the West- 
ern country with emigrant people from the old 
States, and make States so fast. There was no 
idea of having them control the thirteen old 
States. If you could prevent emigration, said 
Colonel Mason, it would be good policy : 

"But go the people will, as they find it for 
' their interest; and the best policy is to treat 
' them with that equality which will make them 
' friends, not enemies. 

" Mr. Gouverneur Morris did not mean to dis- 
' courage the growth of the Western country. 
' He knew that to be impossible. He did not 
' wish, however, to throw the power into their 
' hands. 

" Mr. Sherman was against the motion, and 
' for fixing an equality of privileges by the Con- 
* stitution." 

He was in favor of striking out, but he was 
for fixing an equality in the Constitution: 

" Mr. Langdon was in favor of the motion." 

The President of the Senate of the First Con- 
gress, Iroui New Hampshire, Mr. Langdon, was 
in favor of the motion : 

"He did not know but circumstances might 
' arise, which would render it inconvenient to 
' admit new States on terms of equality. 



" Mr. Williamson was for leaving the Legisla- 
' ture free. The existing small States enjoy an 
' equality now, and for that reason are admitted 
' to it in the Senate. This reason is not appli- 
' cable to new Western States." 

On Gouverneur Morris's motion, the question 
being fairly put: Shall that provision confining 
them to an equality with the old States be strick- 
en out? New Hampshire, Massachusetts, Con- 
necticut, New Jersey, Pennsylvania, Delaware, 
North Carolina, South Carolina, and Georgia, all 
voted " ay " to strike it out. We do not want new 
States upon an equality. We want them under 
control, so that we can fix them as we please. 
If their representation is going to overshadow 
ours, we want to limit it. But when they came 
to adopt a Constitution afterwards, they fixed 
the equality of representation, which, it seems 
to me, controlled the whole matter on that point. 
On the motion to strike out, there were nine in 
favor of it, and two against it, Maryland and 
Vii'ginia. 

It seems to me conclusively shown, by this 
history of the provision, that the whole matter, 
whether we should admit new States on an 
equality with the old States, was lefc to the sound 
discretion of Congress. Congress was to say 
whether it would admit them. Congress was the 
Legislature for the thirteen old States. It could 
examine the situation of those old States ; it 
knew their wants ; it knew their requirements, 
and could say whether new States should come 
in better than any other body. The whole mat- 
ter was left in the discretion of Congress. I do 
not say that it is to be an arbitrary discretion ; 
I do not say that it is to be just as this or that 
man supposes ; but I do say it is to be an exer- 
cise of sound discretion — such a discretion as 
honorable Senators and honorable members of 
the House of Representatives might be supposed 
to exercise, governed by all the considerations 
that enter into so momentous a question ; gov- 
erned by those various considerations, as to the 
position, as to the climate, as to the trade, as to 
the occupation, as to the number of people, and 
as to the character of the people of the new 
States, with reference to the old States. 

Why, sir, in the debate that has taken place 
on this subject, honorable Senators seemed to 
have supposed that a new State had nothing to 
do but form a Constitution just as it pleased, and 
provided it was republican in its form — nay, 
provided it had a republican form of govern- 
ment — it was entitled to come into the Union. 
Suppose a State comes here, asking admission, 
with Brigham Young's notion of polygamy. It 
has a government republican in form, with a 
Senate and House of Representatives elected by 
the people ; a Government republican in form — 
that is it — not republican in sentiment, but in 
form ; you cannot look any further, according to 
this doctrine ; you cannot see what baggage it 
brings with it ; and you might have a ibiate with 
the institution of polygamy, located by the side 
of an older State, to whom it was very offensive. 

Suppose a State comes here with a Constitu- 
tion providing that no murder shall ever be pun- 
ished in the new State : what then ? It is hard- 



7 



[y a supposable case ; but, supposing that it had 
\ Senate and House of Representatives and 
Council, and all the forms of a republican gov- 
jrnment," and yet a provision that no murder 
should ever be punished in that State ; you can- 
Qot look into it — that is the argument — because 
there is no power under ihe Constitution, except 
to see that it has a republican form of govern- 
ment. Suppose it tolerated robbery, and should 
say no robbery should ever be punished ; then, 
if it is renubliciiu iu form, with a Senate, House 
of Representatives, all the paraphernalia, all the 
machinery, all the form, you cannot look into it! 
What have you to do with robbery in a State? 
You are only to look into the Coustiiution, and 
guaranty the State a republican form of govern- 
ment. That is all you can do. Suppose the 
Constitution of a State contains a provision that 
no larceny should ever be punished there, and 
that the government is republican in form, with 
its Senate and its House ; why, sir, if it come 
with all the iniquity ever dreamed of unpunish- 
ed — yea, with a provision that it should not be 
punished in that State — still, if it was republican 
in its form of government, you have to take it, 
if that is the doctrine. 

I do not believe Congress is tied up in the 
Constitution in any such way. I believe we 
have power, if Brigham Young comes here with 
a Constitution tolerating polygamy, to say to 
Brigham Young, you cannot come into this fam- 
ily with your wives. I believe, if any State should 
come here tolerating murder, robbery, or larceny, 
we have a right to say that we shall not admit a 
State allowing those crimes, into this Union. 
Then I go a step further, and say — 

Mr. BIGGS. Does the Senator from New 
Hampshire assimilate murder, robbery, larceny, 
and polygamy, with Slavery? 

Mr. CLARK. I have not done that. I am 
taking the case of a State coming here, allowing 
the most enormous crimes. I was just going to 
say — I should have said it if the gentleman h id 
not interrupted me, and I will say it now — that 
if a State comes here with Slavery, which takes 
the life of a man, which robs him of his labor and 
liberiy, and all that belongs to a man, we have 
a right to look into it. I assimilate if to nothing. 
I do not know that that institution is like any- 
thing else in the world. I hope to (3od it is not. 
Mr. BIGGS. It is an institution that formed 
a part of the social system of every Slate in the 
United States at the formation of the Constitu- 
tion. 

Mr. CLARK. He goes too far in his state- 
ment ; but still I condemn it because it is disrep- 
utable to the Government. The f.ict that it 
then generally existed does not make it right. 

Mr. BIGGS. Then you are ag;ainst the Con- 
stitution. 

Mr. CLARK. No, sir; I am not against the 
Constitution. I say there are some things in the 
Constitution which I wish were not there. I am 
not disposed to extend them, and I will not vote 
to extend them. That is the position 1 assume. 
I had nothing to do with the formation of the 
Constitution. Its responsibilities, its needs, its 
requirements, rest somewhere else. I am to deal 



with the extension of that institution. Its origi- 
nal adoption is one thing: its extent-ion, another. 
1 deal with its extension. The question is not 
whether it went into the thirteen old States. The 
question is, whether it shall go into Kansas. To 
that I am opposed. I do not hesitate to say it. I 
say to the honorable Senator just as the Senator 
from Ohio fMr. Wadk] said this forenoon, I will 
not vote for the admission of Kansas under that 
Constitution, because it does contain a provision 
for Slavery. I do not mean by that assertion to 
exclude every other objection to it. 1 have a 
good many. I stand there "square and fair,"' 
committing nobody but myself, and to that I 
mean to be committed. I wish it to be under- 
stood, that I will not vote to extend Slavery into 
Kansas. 

Mr. BIGGS. Or any other State that may 
apply for admission. 

Mr. CLARK. I have not said that. I do not 
know what ci.ses may arise. It is the part of 
wisdom, of a prudent man, to judge of cases when 
they arise. When another State comes here, I 
will judge (f her ConstituUon and of her posi- 
tion in the attitude in which she stands here. I 
judge of Kansas now ; with Kansas alone am I 
dealin:. I think the issue is sufficient, and I 
wish to show the honorable Senator from Louisi- 
ana, [Mr. Benjamin,] that, though other Senators 
may have sought to avoid and conceal the issue, 
I have not done so. I will not seek to conceal 
the issue. I say to that honorable Senator, I say 
to anybody that hears me, that the people of my 
State" are deadly opposed to that institution, and 
I am here their representative. Nay, sir, I will 
go further: I will say that the course of the 
United Stales Government upon the question' of 
Slavery put my colleague and myself here, and 
we shall maintain the issue which has been com- 
mitted to our hands, faithfully and fearlessly. 
We have no threats, no taunts, no ill-feelings to 
anybody. I make no war upon any Slate where 
Slavery exists. I do not go into the matter with 
Delaware or Virginia ; tbey have it ; let them 
take care of it. They have it in Missouri and 
Georgia; I make no war upon it there; I say 
nothing about it there ; but when asked to ex- 
tend that institution, I say I am not going to do 
it. Now, Mr. President, I shall give my reasons 
why I shall not so vote. 

I am opposed to the admission of Kansas as a 
slave State, because the Constitution of that 
State proposes to carry Slavery where the com- 
mon law did not carry it. This brings me to 
reply to the authorities cited by the gentleman 
frorn Virginia, [Mr. Mason ;] and also to the ar- 
gument of the gentleman from Louisiana, [Mr. 
Benjamin;] for I think 1 shall be able to show, 
though the argument of the gentleman from 
Louisiana was very able, though his tongue was 
very eloquent, and though he cited numerous 
authorities, that the weight of authority, the 
current of decision, and the force of those de- 
cisions, are entirely to the point in this country, 
and in England conclusive, that Slavery did not 
exist by the common law. I am about to begin 
with the earliest case that I can find. I am 
going to comment upon each case as it proceeds. 



It may be tedious; but it is the only way iu 
which I shall be able to relieve myself from the 
position in which I am, because I can here refer 
to authority, and read from books. 

The first case that I find bearing upon chis 
point is to be found in Levinz's Reports. It was 
as early as the 29th Charles II. It was the case 
of Butts against Penny — the same case which 
was cited here, I suppose, by the gentleman from 
Louisiana. It was a case of 

" Trover for one hundred negroes, and upon 
' non culp. it was found, by special verdict, that 
' the negroes were infidels, and the subjects of an 

* infidel prince, and are usually bought and sold 
' i'l America as merchandise by the custom of 
' merchants, and that the plaintiff bought these, 
' and was in possession of them until the de- 
' fendent took them. And Thompson argued, 

* there could be no property in the person of a 
' man sufficient to maintain trover, and cited Co. 
' LU., 116." 

Here you see the doctrine clearly so long ago 
as the reign of Charles 11., (1678,) '-that there 
was no property in man." 

" That no property could be in villeins but by 
' compact or conquest. But the court held, that 
' negroes being usually bought and sold among 
' merchants as merchandise, and also being infi- 
' dels, there might be a properly in them suffi- 
' cient to maintain trover, and gave judgment for 
' the plaintitf, nisi causa, this term ; and at the 
' end of the terra, upon the prayer of the Attor- 
' ney General to be heard as to this matter, Day 
' was given until next term." 

The case never proceeded to judgment. Xo 
judgment was rendered upon it, and it is no au- 
thority, one way or the other. There was a spe- 
cial verdict found, and then time given for show- 
ing cause; ai:d there the matter ended, as ap- 
pears by the report here, and in other reports. 

That is the first case which I find. The next, 
Mr. President, is to be found in Lord Raymond's 
Reports. It is the case of Chamberlain vs. Har- 
vey, 8 and 9 William III, (the year 1702) — seven- 
ty years before the Sommersett case, which the 
Senator from Louisiana says was a piece of ju- 
dicial legislation. It was not new iu the history 
of England at that time : j 

"Trespass for taking of a negro preiii, £100. 1 
' The jury find a special verdict; that the father ' 
' of the plaiutiff was possessed of this negro, and 
' of such a manor in Barbados, and that there is j 
' a law in that country which makes the negra j 
' part of the real estate; that the father died | 
' seized, whereby the manor descended to the i 
' plaintiff as son and heir, and that he endowed ' 
' his mother of this negro and of a third part of 
' the manor ; that the mother married Watkins, j 
' who brought the negro into England, where he I 
' was baptized without the knowledge of the j 
' mother; that Watkins and his wife are dead, ' 
' and that the negro continued several years in | 

< England; that the defendant seized him, kc. 1 

< And after argument at the bar several times by 

< Sir Bartholomew Shower of the one side, and ' 
{ Mr. Dee of the other, this term, it was adjudged j 



' that this action will not lie. Trespass will lie 
' for taking of an apprentice, or hceredem apparen- 
' iuni. An abbott might maintain trespass for 
' his monk; and any man may maintain trespass 
' for another, if he declares with a per quod ser- 
' vitium amisit ; but it will not lie in this case. 
' And per Holt, Chief Justice, trover will not lie 
' for a negro." 

I find here also a reference to a case which I 
have been unable to find, between Gelly and 
Cleve, in which it was adjudged that trover will 
lie for a negro boy. I mention it because I de- 
sire to state authorities fairly. I desire that all 
shall be presented, so that vi^e shall be able to 
judge how the common law of England was. In 
a case immediately after this one between Gelly 
and Cleve, it was adjudged that trover would 
not lie for a negro slave. 

The next case which I have found is in 2 Lord 
Raymond's Reports. It is the case of Smith vs. 
Gould. It is also to be found in 2 Salkeld, page 
660. It has been quoted on the other side, but, 
if I understand it, its authority is the other way 
clearly. The caption is : 

" Trover does not lie for a negro. Where sev- 
' eral damages are given tor several injuries, the 
'judgment may be arrested as to some of them 
' only." 

That does not refer to the point. 

" In an action of trover for a negro, and sev- 
' eral goods, the defendant let judgment go by 
' default, and the writ of inquiry of damages 
' was executed before the Lord Chief Justice 
' Holt, at Guildhall, in London. Upon which the 
' jury gave several damages, as to the goods, and 
' the negro ; and a motion as to the negro was 
' made in arrest of judgment, that trover could 
' not lie for him, because one could not have such 
' a property in another as to maintain this ac- 
' tion." 

That is the ground. Let me read it again: 

" That trover could not lie for him, because one 
' could not h^ive such a property in another as 
' to maintain this action." 

The report continues : 

"Mr. Salkeld, for the plaintilT, argued that a 
' negro was a chattel by the law of the Planta- 
' tions, and therefore trover would lie for him." 

He did not, let me observe, contend that trover 
would lie by the law of England; but that trover 
would lie by the law of the Plantations. 

"That, by the Levitical law, the master had 
' power to kill his slave; and in Exodus, chapter 
' XX, verse 21, it is said he is his master's 
' money; that, if a lord confines his villein, this 
' court cannot set him at liberty, (Fitz. Vil- 
' lein, 5.'' 

And he relied on the case of Butts and Penny, 
(2 Lev., 201 ; 3 Keb., 785,) the one I have just 
cited, in which no judgment was given, as iu 
point, where it was held, trover would lie for 
negroes. " Sed non allocatur. For per totam 
' curiam this action does not lie for a negro, no 
' more than for any other man." 

'1 hat is distinct and emphatic language ; and 
this was in 5 Anne — I think in 1707, sixty-four 



years before the Sommersett rase. The whole 
court — nobody dissented — held distinctly that 
trover would not lie tor a negro no more than 
for any other man. The honorable Senator from 
Louisiana said that the Sommersett case was a 
piece of judicial legislation by Lord Mansfield. 
Here is the same thing, sixty-nine years before 
that case, that trover will not lie for a negro 
more than for any otlier man. It goes on — and 
I wish to call the honorable Senator's attention 
to this reasoning of the court: 

" This action does not lie for a negro no more 
' than for any other man ; for the common law 
' takes no notice ot negroes being different from 
' other men." 

That is the point in this book, that by the 
coiamon law negroes are like other men. Then 
the court go on to say: 

" By the common law, no man can have a prop- 
' erty in another" — remember, this is in 1707 — 
"but in special cases, as in a villein" — villeinage 
then existed — "but even in him not to kill him ; 
' so in captives took in war, but the taker cannot 

* kill them, hut may sell them to ransom them." 

But the court go on to say : 

" There is no such thing as a slave by the law 

* of England." 

This was delivered in 1707, sixty-four years, 
as I said 'nefore, before that piece of judicial 
legislation by Lord Mansfield : 

"And if a man's servant is took from him, the 
' master cannot maintain an action for taking 
' him, unless it is Idid per quod serviliuin amisU." 

Mr. BENJAMIN. It the gentleman will allow 
me, I will observe that the question discussed in 
that decision is a mere technical question as to 
the forms of action : it is not a question as to the 
master's right of property. 

Mr. CLARK. Then I do not understand it, 
when the court say that an action of trover does 
not lie for a negro more than any other man. 
Can he make trover lie for a white man, unless 
he were a villein at that time? 

Mr. BENJAMIN. It would lie for a villein no 
more thau it would for a negro. That case is 
in regard to the form of action. The chief jus- 
tice goes on to say, if you want to sue for a 
slave, put it on the ground that you have lost 
his labor. That is the form of the action you 
can bring. 

Mr. CLA.RK. I differ entirely with the Sena- 
tor from Louisiana, because then you allow the 
slave to stand upon the ground of a freeman. 
You can bring an action for his labor. 

Mr. FOSTER. Yes; as a father may sue for 
the service of his son. 

Mr. CLARK. Yes, sir, that is the ground on 
which you stand. But the court say, in this 
very case, that there is no property in man ; that 
the'law in England does not recognise property 
in a slave. That is the very point: whether, by 
the common law, Slavery existed in England? 
and in this very case, it was decided that the 
common law dees not recognise Slavery. It is 
a vain attempt to shove it on technicalities. It 
is fair and square, open and patent. 

I now come to the Sommersett case. I cite 
that, not to be tedious ; not because I suppose it 



is not well understood; but to show that Lord 
Mansfield considered in his argument the very 
cases which the Senator from Louisiana has so 
eloquently commented upon. The Senat«ir from 
Louisiana talks about the opinion of Sir Philip 
Yorke, and the decision of Lord Hirdwick after- 
wards. I state here, and will show in the Som- 
mersett case, that in the reasoning of the court, 
the court were aware of it, and overruled it : and 
said they could not allow any force to it. I will 
read the opinion of Lord Mansfield. He says: 

" We pay all due attention to the opinion of 
' Sir Philip Yorke and Lord Chief Justice Tal- 

< loV 

Mr. FESSENDEN. What book are you read- 
ing from ? 

Mr. CLARK. Loft's Reports, 12 George IIL 
I am now reading from the Sommersett case, in 
1772, which is to be found on the 19th page : 

"We pay all due attention to the opinion of 
' Sir Philip Yorke and Lord Chief Justice Tai- 
' hot, whereby they pledged themselves to the 
' British planters, for all the legal consequences 
' of slaves coming over to this kingdom, or being 
' baptized, recognised by Lord Hardivick, sitting 
' as Chancellor, on the 19th of October, 1749, 
'that trover would lie: that a notion had pre- 
' vailed, if a negro came over, or became a 
' Christian, he was emancipat( d, but no ground 
' in law ; that he and Lord Talbot, when Attor- 
' ney and Solicitor General, were of opinion that 
' no such claim for freedom was valid ; that 
' tl'ough the statute of tenures had abolished 
' villeins regardant to a manor, yet he did not 
' conceive but that a man might still become a 
' villein in gross, by confessing himself such in 
' open court." 

Then said Lord JIansfield : 
" We are so well agreed that we think there is 
' no occasion of having it argued (as I intimated 
' an intention at first) before all the judges, as is 
' usual, for obvious reasons. In a return to a 
' habeas corpus, the only question before us is, 
' whether the cause on the return is sufficient? 
' If it is, the negro must be remanded; if it is 
' not, he must be discharged. Accordingly, the 
' return states that the slave departed and refused 
' to serve ; whereupon he was kept, to be sold 
' abroad. So high an act of dominion must be 
' recognised by the law of the country where it 
' is used. The power of a master over his slave 
' has been extremely different, in different coun- 
' tries. The state of slavery is of such a nature, 
' that it is incapable of being introduced on any 
' reasons, moral or political, but only positive 
' law, which preserves its force long after the 
' reasons, occasion, and time itself, is erased from 
' memory. It is so odious, that nothing can be 
' suffered to support it but positive law. What- 
' ever inconveniences, therefore, may follow from 
' a decision, I cannot say this case is allowed or 
' approved by the law of England : and therefore 
' the black must be discharged." 

Mr. BENJAMIN. Will the Senator permit me 
to ask if Lord Mansfield does not say, in that 
very decision, that there were then many thou- 
sand pounds worth of slaves in England? 



( , 



10 



Mr. CLARK. I will read it all, and see. This 
is Lord Mansfield : 

" On the part of Somvierse/i, the case which we 
' gave notice shall be decided this day, the court 
' now proceeds to give its opinion. I shall recite 
' the return to the writ of habeas corpns, as the 

* ground of our determination, omitting only 
' words of form. The captain of the ship on 
' board of which the negro was taken, makes his 
' return to the writ in terms signifying that there 
' have been, and still are, slaves to a great num- 

* ber in Africa; and that the trade in them is 
' authorized by the laws and opinions of Virginia 
' and Jamaica ; that they are goods and chattels, 
' and, as such, saleable and sold. That James 
' Sommeisett is a negro oi Africa, and, long before 
' the return of the King's writ, was brought to 
' be sold, and was sold to Charhs Stewart, Esq., 
' then in Jamaica, and has not been manumitted 
' since ; that Mr. Stewart, having occasion to 
' transact business, came over hither, with an 
' intention to return, and brought Sommersett to 
' attend and abide with him, and to carry him 
' back as soon as the business should be trans- 
' acted. That such intention has been, and still 
' continues; ,and that the negro did remain, till 
' the time of his departure, in the service of his 
' master, Mr. Stewart, and quitted it without his 
' consent; and thereupon, before the return of the 
' King's writ, the said Charles Stewart did commit 
' the slave on board the Ann and Mary, to i&^b cus- 
' tody, to be kept till he should set sail, and then 
' to be taken with him to Jamaica, and there sold 
' as a slave. And this is the cause v?hy he, Cap- 
' tain Knoivles, who was then, and now is, com- 
' manderof the above vessel, then and now lying 
' in the river Thames, did the said negro, com- 
' mitted to his custody, detain, and on which he 
' now renders him to the orders of the court." 

1 have now read up to the point where I com- 
menced in the first instance, and I find nothing 
of that to which the gentleman alludes. 

Mr. BENJAMIN. I will state, then, that that 
is an imperfect report. 

Mr. CLARK. I do not think it is. 

Mr. BENJAMIN. The whole of the decision 
will be found in 20 Howell's State Trials. 

Mr. CLARK. I take it as it is here ; and if I 
found anything in regard to what the Senator 
alludes to, I would read it. I did not select it 
because it did not contain such a provision ; but 
oil asking for the State Trials at the Library, I 
was told that it was not in, but that I should 
find the decision in this volume ; and I took it. 

The nest ca^^e which I cite is one in our own 
country. I have one further case to cite from 
England, but I propose to follow the order of 
time. I have cited a case in 1*702. I have cited 
a case in 1'707. There is no case intervening, 
that I am aware of, between that and the Som- 
mersett case, in 1772. 1 do not find any case 
after that, and I do not think the question was 
mooted after 1772 during that century. I do 
not say there were no other cases. I do not say 
that I have examined so thoroughly as I desire 
to. I have taken the cases as I found them, by 
the aids of such lights as were afforded me with- 
in the last few days. I come down now to our 



own country ; and I find a case in the Kentucky 
Reports, in a slave State. It is the case of Ran- 
kin vs. Lydia, a slave. I do not propose to read 
the whole case, but I propose to read from the 
remarks of the court. 

Mr. PUGH. If the Senator will allow me, I 
wish to read an extract irom the Sommersett 
case, on a point which was in issue between him 
and the Senator trom Louisiana. It is in the 
argument : 

"About fourteen thousand slaves are at pres- 
' ent here in England." 

Mr. CLARK. It may have been so. I do not 
know how the historical fact was. Negroes may 
have been there ; but the case was not to be 
decided on the tact of negroes being in the coun- 
try, but on the (act whether Slavery existed 
there by law. It was not a decision of how 
many negroes there were in the country. It 
may have been that a great many wore brought 
in, but that certainly was not the question before 
the court. 

Mr. BENJAMIN. If the gentleman will per- 
mit me a moment, as I do not mean to make 
another speech, I will call his attention, not to 
break down the force of his argument, but to 
fortify what I have said, which was this: that 
slaves were recognised as merchandise, were 
daily sold in the public mart in London, when 
this decision was made; and the evidence! that 
this decision was judicial legislation consisted 
in the fact that laige masses were daily sold in 
London, without question from the authorities, 
under the opinion of the Solicitor General and 
the Attorney General, until Lord Mansfield, in 
Sommersett's case, declared that involuntary ser- 
vitude could not exist, and destroyed property in 
about fifteen thousand slaves. 

Mr. CLARK. They may have been sold by 
the merchants. I do not undertake to say how 
that was. I know that lottery tickets are sold 
daily, weekly, and monthly, in my State, con- 
trary to law. Although I never bought a ticket 
in my life, and never shall, yet I have sent me 
almost every M'eek a magnificent scheme, in 
which I am told 1o go to such a place in my own 
State to get the tickets. 

Mr. BENJAMIN. Do they sell them at public 
auction? 

Mr. CLARK. No, sir; but they sell them 
openly, "i ou might as well justify Peter Funk 
auctions, because they take place in the city of 
New York. It is the law v/e are discussing; not 
the practices of the English people, unless those 
practices have grown into custom, and make law. 
When Lord Mansfield, or any other English 
judge, shall decide that so many slaves in Eng- 
land make the common law, then it will have 
force and effect; but not till then. You maj' 
tell me that American vessels go to Africa, and 
are there loaded with slaves, and come into our 
country ; and yet the law here is, that the slave 
trade is piracy. I know a man may go outside 
of the law, but that does not alter the law. 

I proceed to read from this opinion in 2 Mar- 
shall, p. 470, in the case of Rankin vs. Lydia; 

"In deciding this question, we disclaim the 
' influence of the general principles of liberty" — 



11 



the court wag careful to do that — " which we 
' all admire, and conceive it ought to be decided 
' by the law as it is, and not as it ought to be. 
' Slavery is sanctioned by the laws of this State ; 
' and the right to hold them tinder our municipal 
' regulations is unquestionable. But we view 

* this as a right existing by positive law, of a 

* municipal character, without foundation in the 

* law of nature, or the unwritten and common 
< law." 

That is the decision of the State of Kentucky, 
that Slavery did not stand upon the common 
law. Here, Mr. President, let me make a dis- 
tinction, for I am not quite sure, by the argu- 
ment of tlie honorable Senator from Louisiana, 
whether he meant to say, and conhned his ar- 
gument to, statute law, instead of positive law. 
I am not contending that Slavery exists every- 
where b}'^ statute law. I say it only exists bj 
positive or municipal law, or laws which may 
become positive and municipal by the force of 
custom, and grown up to be recognised as the 
positive law of the land, but not by the common 
law. The court, in the decision of this case of 
Rankin vs. Lydia, says : 

" But we view this as a right existing by posi- 
' five law, of a municipal character, without 
' foundation in the law of nature, or the unwrit- 
' ten and common law." 

The next case to which I come, Mr. President, 
is one I think from the gentleman's own State. 
It is to be found in 2 Martin's Reports, 1824. [ 
cite from the case of Lunsford vs. Coaquillon, 
page 402 : 

" The relation of owner and slave is, in the 
' Stales of this Union in which it has legal ex- 
' istence, a creature of municipal law." 

Mr. BENJAMIN. There was a law in force in 
our State at the same time on the subject. 

Mr. CLARK. The next case I sliall cite is that 
of Forbes I's. Cochrane, to be found in 2 Barue- 
wall and CresswoU's Reports, in which the judge 
says: 

*' I am of opinion that, according to the prin- 
' ciples of the English law, the right to hold slaves, 
' even in a country where such rights are recog- 
' nised by law, must be considered as founded, 
' not upon the law of nature, but upon the par- 
' ticular law of that country." 

Mr. FKSSENDEN. What case is that? 

Mr. CLARK. The case of Forbes vs. Coch- 
rane, page 362, in 1824. 

1 ought, before I go further, to comment a lit- 
tle upon the case of the slave Grace, but it does 
not go to show at all, as I understand it, that 
Slavery existed by the common law. It was a 
case where a slave was brought from one of the 
West India islands to England, lived there a 
while, and went back, and then a suit was brought, 
not for the jnirposc of detci mining her freedom, 
but that was incidentally brought to the notice 
of the court, and the court hehi that, however 
the law might be in England, that though she 
might be free there, if she brought an action for 
freedom, yet, going back to the West Indies, 
where Slavery existed, and having for four years 
submitted herself voluntarily to that state of 
servitude, she was not entitled to freedom. 



I come now to the case of Prigg vs. The Com- 
monwealth of Pennsylvania, 1842. The same case 
was cited by the honorable Senator from Louisiana, 
and I was a little surprised, I must confess, when 
that honorable Senator took this case against 
the Commonwealth of Pennsylvania, which was, 
in fact, as he says, a case between the State of 
Maryland and the State of Pennsylvania, and 
read from it a portion of Judge McLean's opin- 
ion, to sustain the view that he was taking, to 
wit : that the common law recognised Slavery, 
or that it had not been abolished in this country. 

Mr. BENJAMIN. I beg the gentleman's par- 
don. I quoted that for the purpose of establish- 
ing, in contradiction to the Senator from Maine, 
[Mr. Fessenden,] that slave property was guar- 
antied by the Constitution. I did not quote that 
upon the subject of the common law. 

Mr. CLARK. I may be mistaken about the 
precise point with which and for which the hon- 
orable Senator quoted. I dare say I am. I would 
not for a moment misrepresent him ; but I will 
still say, that while he had been so earnestly 
contending and citing authorities to show that 
the common law did recognise Slavery — that it 
in fact brought it into this country — I was a lit- 
tle surprised, when he had this case of Prigg vs. 
The Commonwealth of Pennsylvania in his 
hand, no matter for what purpose, nor to what 
precise point he cited it, and this very case fol- 
lows the Sommersett case, which he says was 
judicial legislation, in which the United States 
court decides that Slavery only exists by muni- 
cipal or positive law, that the honorable Senator 
did not read that portion to the Senate. It wag 
not his purpose to do so. I find no fault be- 
cause he did not. I only say it seemed to me a 
little singular that he should not have cited the 
authority of the highest court of the Union, 
when he launched out afterwards, I think, or 
before, no matter -which, in so eloquent and so' 
high a eulogium upon that court. In another 
particular I was a little surprised. When he 
commented upon the case of the slave (irace, 
decided by Lord Stowell, he read from some 
book — I do not understand from what — a letter 
from Mr. Justice Story, approving of the decision 
in that case, and saying he would have decided 
it as Lord Stowell had decided it. Now, I want 
to say to the Senator that this case of Prigg vs. 
The Commonwealth of Pennsylvania was deci- 
ded when Mr. Justice Story was upon the bench ; 
ay, sir, Mr. Justice Story himself delivered the 
opinion of the court. 

Mr. BENJAMIN. I said so. 

Mr. CLARK. Did the honorable Senator say 
so the other day? 

Mr. BENJAMIN. I did in my speech. 

Mr. CLARK. On that point ? 

Mr. BENJAMIN. Yes. 

Mr. CLARK. I understood him not to allude 
to that point at all. He may have said that Jus- 
tice Story delivered the opinion of the court ; 
but he did not tell the Senate that Mr. Justice 
Story decided that Slavery existed bnly by posi- 
tive municipal law. I think the gentleman will 
not cay he eaid that. 



12 



Mr. BENJAMIN. I did not say that, because 
I never did understand hira so to decide. 

Mr. CLARK. Then we will read the decision. 
I will read first from the caption : 

" By the general law of nations, no nation is 
' bound to recognise the state of Slavery as to 

* foreign slaves within its territorial dominions, 

* when it is opposed to its own policy and insti- 
' tutions, in favor of the subjects of other na- 
' tions where Slavery is recognised. If it does it, 
' it is as a matter of comity, and not as a matter 
' of international right. The state of Slavery is 
' deemed to be a mere municipal regulation ; 
' founded upon " — ■ 

That is it — " founded upon." It is a very cu- 
rious expression — " founded upon, and limited 
to the range of territorial laws." 

That is the law of the country where it exists. 
It is founded upon and limited to it. The gen- 
tleman would have the Senate infer that Slaverj^ 
came into the country by the force of the com- 
mon law which extended itself all over the Eng- 
lisii colonies, and that that is a part of the birth- 
right which we had. Mr. Justice Story says it 
is founded upon municipal regulation, and con- 
fined and limited to territorial law. This is the 
caption of the case. J^et us see what the reason- 
ing is, and what authority is cited to support it. 
Mr. Justice Story delivered the opinion of. the 
court : 

" By the general law of nations, no nation is 
' bound to recognise the state of Slavery." 

I shall cite this presently, in further answer 
to the Senator from Virginia, who maintained, 
as I understood, that it existed by the laws of all 
Christian nations, or almost all ; and therefore 
was to be recognised in this country. Mr. Justice 
Story says : 

" By the general law of nations, no nation is 
' bound to recognise the state of Slavery, as to 
' foreign slaves within its territorial dominions, 
' when it is in opposition to its own policy and 
' institutions, in favor of the subjects of other 
' nations where Slavery is recognised. If it does, 

* it is as a matter of comity, and not as a matter 
' of international right. The state of Slavery is 

* deemed to be a mere municipal regulation, 
' founded upon and limited to the range of the 
' territorial laws. This was fully recognised in 
' Sommersett's case, (Loft's Rep., 1 ; S. C. 11 
' State Trials by Harg., 340 : S. C. 20 Howell's 
' State Trials, 79,) which was decided before the 
' American Revolution " 

This case (Sommersett's) settled the question 
as to the common law, four years before the 
Declaration of Independence, so that, if that was 
the true law of England, if that was the state of 
the common law, we did not take Slavery' by 
the common law, but we took it by the force of 
the territorial law. Judge Story, in this decis- 
ion, continues : 

"It is manifest, from this consideration, that 
' if the Constitution had not contained this 
' clause" — that is, the clause in regard to fugi- 
' tives — "every non-slaveholding State in the 
' Union would' have been at liberty to have de- 
' clared free all runaway sl.ives coming \\ ithin 
' its limits." 



Now, Mr. President, I wish to ask honora- 
blu Senators how this could have been under 
the Constitution, if the common law brought 
Slavery here, if Slavery existed by the comnioa 
law, which was part of our birthright? If Sla- 
very came here by force of the common law, it 
was cariied into every State of the Union where 
the common law went. What was the necessity 
of that provision, if by force of the common law 
the master could get his slave? It was in Peun- 
sylvania as well as in Maryland ; and when a 
slave went from under their statute law in Mary- 
land, and got into Pennsylvania, he was still 
under the common law ; he could not be a free- 
man, because the common law would hold him. 
But, understanding distinctly that the common 
law did not recognise Slavery, the framers of the 
Constitution put in that provision, so that slaves 
should not be set free who escaped into a free 
State where the common law did exist, but which 
did not recognise Slavery. They inserted that 
provision in the Constitution, in order that fugi- 
tive slaves might bd returned into the States 
from which they came. 

This is the decision of the highest court of the 
nation. I do not know that it has ever been 
overruled, unless it was overruled by the Dred 
Scott opinion, and that does not overrule it in 
terms. Here is a case decided in 1842, fifteen 
years after the case of the slave Grace. It was 
not before the decision of that case, which the 
honorable Senator from Louisiana says Justice 
Story approved It was fifteen years after that 
matter had been brought to his knowledge, and 
his attention had been turned to it. What is 
remarkable here is, that the court did not all 
concur in the reasoning of Mr. Justice Story ; 
they did not all concur in all the points he made, 
and the other judges went on seriatim, one after 
another, to give opinions and reasons, and yet 
not one of the judges dissented from Mr. Justice 
Story upon this point. Thej'all concurred ia it; 
and Mr. Chief Justice Taney that now is, was 
then upon the bench when this case was decided, 
and he did not dissent from that part of it. I 
think there is not to b(! found, in Mr. Justice 
Taney's opinion, a solitary dictum on which he 
dissented upon that part of Mr. Justice Story's 
opinion. 

I have here another case. I am following tho 
order of time. I have got up to the highest court 
of the nation. I am not beginning with the lower, 
and going up to the higher by different grades of 
authority, but I am following the order of tisne. 
1 have given the case of Prigg vs. The Common- 
wealth of Pennsylvania, in 1842. What is re- 
markable is, that you find these cases as well in 
the slave States as everywhere else. I hold in 
my hand 9th Georgia Reports, in which I find a 
very remarkable case — that of Neal vs. Farmer — 
where the judge goes into the matter with great 
research and great learning. I should differ from 
him in some of his conclusions, for reasons which 
will be obvious when I come to read the opin- 
ion. This is a case in the State of Georgia, 
which is decided on the ground that Slavery did 
not exist by the common law, but existed by the 
various statutes passed in England for the Colo- 



13 



nies, and by the statutes passed by the Colonies 
themselves. The case was very maturely con- 
sidered. I presume the honorable Senator from 
Louisiana has seen it, though I did not under- 
stand him to take any notice of it. 

Mr. BSN,JAMLV. I will merely suprgest to the 
gentleman that I can furnish him with a hundred 
cases to the same ett'ect in tlie slave States. 

Mr. CLARK. I dare say the gentleman is 
much more learned than I am upon this point. 
I dare sa3 he might beat me "two to one" in 
bringing forward cases. I am not surprised, be- 
cause it was not his object to show that Slavery 
did not exist by the common law, but to show 
that it did, that ho left behind the hundred cases 
he said he could furnish, and brought the others. 

The second note or point in the caption of this 
case in 9th Georgia Reports, 555, is this: 

"African Slavery held never to have existed 
' in the Island of Great Britain by the common 
' law, by statute, or by the law of nations." 

The point made in this case was this : a negro 
had been killed, and the question material to de- 
cide was, whether that killing was felony or not. 
Counsel endeavored to show that Slavery did 
exist by the common law, and that by the com- 
mon law it was (elony to kill a man ; and there- 
fore it was felony to kill the negro ; but the court 
held the contrarj^, that Slavery never did exist 
by I he common law, nor by any statute law in 
England, and passed a decision on that point. 
They afterwards go on to give the origin of Sla- 
very ; and to that part of the case I shall address 
myself by and by. Let me say that here is a 
discussion in this decision of that other interest- 
ing subject which the Senator so complacently 
alluded to the other day, that of villeins regardant 
and villeins in gross. The whole doctrine was 
stated by the Senator, and he told the rest of the 
Senators where they could find it. Plere it is, 
not in England, but in our own midst, in the 
State of Georgia, examined in connection with 
Negro Slavery in England, and a decision sol- 
emnly rendered that Slavery docs not exist by 
the common law. The court say, further : 

" We look in vain, certainlj', to the common 
' law for traces of Saxon Slavery as an institu- 
* tion under its protection." 

The opinion was delivered by Judge Nisbet: 

"By the court — Nisbet, Judge, delivering the 
' opinion. 

"But I apprehend that a j'ldge, silting to de- 
' ter/nine what was the status of the slave under 
' the common law, can derive from its considera- 
' tion no light to guide him, because I consider 
' that the common law recognises but one spe- 
' cies of Slavery as having existed in England 
' imder its sanction, at any time, and that is vil- 
' I'inage." 

No other Slavery existed by the comii;on Law 
in England, says the court, at any time. The 
court say, farther on in the opinion : 

"The unconditional Slavery of the African 
' ra''e, as it exists in Georgia, never did exist in 
' Great Britain. I do not mean, of course, in the 
' British Empire, but in the Island of Great Brit- 
' ain. It has never had a status under the com- 
' mon law." 



Then the court, farther on, say : 

" I now consider the decisions of the English 
' courts" — the court reviewed all the English 
decisions on that point — "upon the subject of 
' Slavery, and I think il will be seen that Slave- 
' ry has never been recognised to exist there, 
' under the common law. On the contrary, it ia 
' well settled, that the moment a slave, whether 
' Afric.in, Indian, Jew, or Gentile, sets his foot 
' upon British soil, he is a freeman, and entitled 
' to the protection of the laws as such." 

The court say in this case : 

"The question is, did this fact recognise Sla- 
' very in England, as an institution under the 
' protection of the common law?" 

That is, the fact that Slavery was recognised 
by the law of nations. England had recognised 
Slavery as a part of the law of nations, and the 
court go on to consider the question whether, 
having recognised Slavery as a part of the law 
of nations, it made a part of her common law ; 
and they say ; 

" The question is, did this fact recognise Sla- 
' very in England as an institution under the 
' protection of the common law? Clearly, it did 
' not. The laws of nations are recognised by 
' the municipal laws, and will be enforced upon 
' the citizens and subjects of the States parties 
' thereto, in all cases when a question arises 
' which is the object of their jurisdiction. They 
' are recognised by the common law. (4 Black. 
' Com., 67, &c.) The law of nations tolerated, 
' but did not enjoin, the slave trade. The obli- 
' gation of England under it was, to respect the 
' rights of those States engaged in it, within 
' their own territories, and upon the high seas. 
' Vessels engaged in the traffic were not liable 
' to seizure and confiscation. Her subjects were 
' also equally entitled to protection under the 
' international law. I apprehend, however, that 
' it is historically true, that neither by statute 
' nor by usage has Great Britain ever availed 
' herself of the license of the law of nations, to 
' introduce Slavery into the Island of Great 
' Britain from Africa. In point of fact, pure 
' Slavery never did exist in England, neither by 
' capture in war, by municipal authority, or by 
' the law of nations. Had slaves been intro- 
' duced into that part of her empire by municipal 
' authority, or had they been introduced without 
' municipal, that is, without statutory authority, 
' under a trade sanctioned by the laws of nations, 
' the status of Slavery would have been there 
' just what it is here. Property in the slave, the 
' right to control his person, his limits, as Lord 
' Coke expresses it, would have existed and fallen 
' under the protection of the common law. To 
' any correct view of this subject, it is indispen- 
' sable to distinguish between Great Britain and 
' her colonies. As to the latter, we know that 
' Slavery there did in fact exist, and was sanc- 
' tioned by usage under the law of nations, and 
' by acts of Parliament; as to the former, we 
' know that it did not exist there, and received 
' no such sanction. How could, then, the com- 
' mon law attach upon the institution of Slavery 
'in the Island of Great Britain? The law of 
' nations would have justified Slavery in Eng- 



14 



' land, had it been there. But they did not 
' create it there. Whether by the comity of na- 

< tions the English courts are not bound to de- 

< liver a slave, coming into Great Britain from a 
' State where Slavery exists by law, to his right- 
' ful owner, to be taken back, as was the demand 
' in the Sommersett case, is a different question. 
' Lord Manslield held that they are not. 

'• Nations being equal, the laws of one State 
' have no operation in any other, proprio viffore." 

Then the question arose before the court, 
■whether the rei-.ognitiou of Slavery, and the ex- 
istence of S avery in the colonies, did not estab- 
lish it in England ; whether, from the fact that 
Parliament passed certain laws establishing Sla- 
very in the colonies, they did nol carry it into 
England? As to that question, the court decide 
that it certainly did uor. ; and they say: 

" The recognition of Slavery in the coloniea 
' did not establish it in England. This is the 
' answer to the conclusion drawn by counsel. 
' The statutes of Great Britain do not apply to 
' the colonies, uoless expressly extended to them ; 
' and the acts which relate to the colonies alone, 
' have a local operation only. Such has been 
' the ruling of the courts at Westminster Hall. 
' Expressly so held, in reference to these very 
' statutes, in Forbes vs. Cochrane, 2 Barn, and Crex. 
' by Best, J"., p. 448 ; 1 Black. Com., 107, 108 ; 1 
' Chitt. Com. Laiv, 638." 

Then the court come back to review all the 
cases in England on this point : 

" I return now [says the judge] to a review of 
' the decisions in England upon the suVyect of 

* Slavery. The authenticated cases in England 
' before the Soinmerselt case are five in number, 
' to wit: Butts vs. Penny, in the 28 Charles II." 

The same case which the honorable Senator 
cited. There is also here the case of ^S/zu^A vs. 
Gould, in reference to which the court say: 

"In Smith vs. Gould, which was also trover for 
' a negro and other things, the plaintiff had a 
' verdict with several damages, and dC30 for the 
' negro. On motion in arrest, the court held 
' that trover could not lie for a negro." 

I did not find that case in Salkeld's Reports. 

Mr. BENJAMIN. I will state to the Senator 
that there are two cases in Salkeld, on the same 
page, on this subject, and he will find that that 
is one of them, 

Mr. CLARK. I have found a case in Salkeld's 
Reports, some things in which I want to read 
to the Senator. This is one of the older cases, 
1707 — Smith vs. Brown and Cooper: 

" The plaintiff declared in an indebitatus as- 
' sumpsit tor 20/!. for a negro sold by the plaintiff 

* to the defendant, namely: in Parochia beatce 
' Maria de Arcubus in Warda de Chca.pe, and ver- 
' diet for the pla'mtiff ; and on motion in arrest 
' ot judgment. Holt, C. J., held: that as soon as 
' a negro comes into England, he becomes free ; 
' one may be a villein in England, but not a 
' slave. El per Powell, J. In a villein the 
' owner has a property, but it is an inheritance ; 
' in a word, he has a property, but it is a chattel 
' real ; the law took no notice of a negro." 

Then, if the law took no notice of a negro, it 
did not make him a slave ; that is clear. 



Mr. BENJAMIN. Read it all. 

Mr. CLARK. I will read it all. Chief Justice 
Holt says : 

"You should have averred in the declaration, 
' that the sale was in Virr/inia, and, by the laws 
' of that country, negroes are saleable ; for the 
' the laws oi England do not extend to Virginia; 
' being a conquered country, their law is what 
' the King pleases; and we cannot take notice 
' of it but as set forth ; therefore he directed the 
' plaintiff should amend, and the declaration 
' shoild be made, that the defendant was in- 
' debted to the plaintiff for a negro sold here at 
' London, but that the said negro, at the time of 
' sale, was in Virginia, and that negroes by the 
' laws and statutes of Virginia are saleable as 
' chattels." 

In England there could have bSen no sale of a 
negro, lor he would have been a freeman ; but the 
slave being in Virginia, he could be sold, though 
the sale was made in London. 

" Then the Attorney General coming in, said 
' they were inheritances, and transferable by 
' deed, and not without ; and nothing was 
' done." 

1 do not think that is authority for the other 
side. Here the same case comes up in another 
shape, in Smith vs. Gould, in trover. In the case 
which I have just quoted they tried assumpsit, 
and could not succeed in that, because there was 
not such a thing as a slave in England, by the 
common law. They then tried trover, and the 
court held that trover lies not for a negro; but in 
a suit of trespass, quarc capfivumsuum cepit, if in 
technical form, the court intimated that the 
plaintiff might have succeeded. 

I want to call the attention of honorable Sena- 
tors to one expression in this case of Smith vs. 
Gould, which covers the whole ground. I have 
never seen anything so succinctly stated. It re- 
sembles some of those old maxims of the com- 
mon law: 

"(Sfirf curia contra, men maybe the owners, and, 
' therefore, cannot be the subject of property." 

Man may own, but he cannot be owned. That 
is the doctrine of the case. 

Now, Mr. President, I have done with that 
part of my argument which relates to the com- 
mon law. I think I have shown that Slavery 
did not exist by the common law. If it did not ex- 
ist by the common law, it could not be brought 
here by the common law from England, and did 
not exist here. If it did not exist here by the 
common law, then, if it existed at all, it existed 
by the municipal law — the positive law of the 
State. Wherever there was a positive law on 
the suVjject, regarding the slave as property, 
there he was property. Wherever there was no 
municipal law, no law upon the subject making 
him a slave, there he was a freeman. Hence the 
pertinency of that provision of the Constitution, 
which was a matter of compromise, in regard to 
the fugitive slave. If in Virginia and Maryland 
a slave is held by the force of positive law, cus- 
tom, or statute, and he escape and goes into the 
State of Pennsylvania, or any other State where 
he is not held as a slave, where Slavery does not 
exist, without a provision that he should be re- 



15 



turned under the Constitution, ho. wor.ld be free ; 
and, llieret'ore, the f'raiuers of the Constitution 
inserted in it that provision. 

Our courts have repeatedly held, and have re- 
cently held in New Yorlc, Massacliusetts, every- 
where, that if a slave is curried voluntarily by his 
master into a free State, he cannot take him bade 
again. If Slavery existed by the c^mmon law, 
the master would have a right over him, and he 
could take him back just as he could his horse or 
his cow. He could lay his hands upon him, and 
say: "You are my property under tln^ common 
law; come along with me." You would not 
want a fugitive slave law to get him, if Slavery 
existed by the common law. Y'ou never have had a 
fugitive slave law for a horse or a sheep. It was 
only because that by the common law the slave, 
when he gets from under the statute law, is free, 
that this provision of the Constitution was 
adopted. 

This case in Georgia, and some other cases, go 
to the point to show that Slavery was not estab- 
lished by the law ot nations. The law of nations, 
as I said, does not go so far as to make positive 
law for any State. For instance, England may 
recognise Slavery and the slave trade as part of 
the law of nations, Spain may recognise them, 
France may recognise them, the whole world may- 
recognise them by the law of nations; and yet, 
if New llarapshiie does not recognise them, the 
law of nations cannot Ibrce them upon her. The 
law of nations regulates the rules and the pro- 
ceedings between nations ; but it does not go with- 
in a nation, and make anything a part of its in- 
stitutions, and force on that nation what does 
not otherwise exist by its own law. So, if Sla- 
very and the slave trade exist by the law of na- 
tions, that law of nations does not have the force 
of carrying Slavery into any Territory where it 
does not exist, but only regulates the law as be- 
tween those nations. Each nation is at libery to 
regulate its own law. The United States un- 
doubtedly recognised the slave trade as part of 
the law of nations up to a certain time. I think it 
recognises it now as part of the law of some na- 
tions, but she has prohibited it herself, and the 
law of nations does not have such effect as to 
compel her to have it here. No such force is 
given to it; and notwithstanding all the nations 
in Christendom, except the United States, may 
have recognised Slavery, yet if the United States 
had not recognised it, it does not bring it here ; 
and if some of those United States have recog- 
nised it, it does not carry it into States which 
have not recognised it. It has no force to bring 
it into free territory, because recognised in Vir- 
ginia, or because Virginia recognised the law of 
nations. It does not have any such ibrce. Each 
nation stands by itself upon its own laws, regu- 
lating its own domestic concerns, and then there 
are certain laws, rules, and regulations, called 
the law of nations, which regulate the inter- 
course of nations. 

With these remarks upon 'that point of the 
case, I dismiss it. I have some further remarks 
to make upon this case in Georgia, because it 
goes further than any case I have found. It goes 
oa to point out the way in which property in 



slaves was acquired, and to give, in fact, the 
tbundation of the law for holding property in 
slaves, or holding negroes as slaves : 

" The faculty of holding slaves [say the court] 
' was derived Irom the trustees of the colony, 
' acting under authority of the British Crown, 
' as a civil right, in 1751, by an ordinance of that 
' board. Belore that time, their iutroductioa 
' was prohibited." 

Remember that this is a decision in the State 
of Georgia: 

'' The regulation of slave property is as much 
' the province of municipal law, as the regula- 
' tion of any other property, and its protection 
' equally its obligation; but we deny tha.t prop- 
' erty in slaves, and the title by which they are 
' held, are the creations of statutory law. To 
' view this question fairly, let the inquiry go 
'back to a period subsequent to the ordinance 
' of the trustees, in 1751, and anterior t© any leg- 
' islalioa upon the subject of Slavery. Licensed 
' to hold slave property, the Georgia planter held 
' the slave as a chattel ; and whence did he derive 
' bis title ? Either directly from the slave trader, 
' or from those who held under him, and he 
' from the slave captor in Africa. The property 
' in the slave in the planter, became thus just 
' the property of the original captor. In the ab- 
' sence of any statutory limitation upon that 
' property, h« holds it as unqualifiedly as the 
' first proprietor held it." 

Exactly. Nobody doubts that. Nobody in the 
world, that I know of, can doubt that the slave- 
holder has just as good a right to the negro slave 
as the man who stole him and brought him away 
from his country. Here is the foundation of thi3 
business which all Christian nations have car- 
ried on. They go back to the slave captor, to 
the man who stole him in Africa, or to the slave 
trader, and they say the slaveholder has just ag 
good a right to the slave as the captor or the 
slave trader. I grant you that, or any other 
robber or pirate, but not better. I do not mean 
by this, Mr. President, by any means, that the 
people wh© own slaves are pirates or robbers ; I 
am only speaking of the solidity of the title. It 
rests exactly upon the title of the captor who 
makes war upon the African and takes him away, 
or of the slave trader who is declared to be a 
pirate. That is exactly the title of the slave- 
holder to the slave; and he has no other. In 
many cases the negro gets into the hands of peo- 
ple' who are not to blame. I will not condemn 
any man, or any class of men. I am discussing 
the abstract piinciple upon which the title to the 
slave rests. It rests upon the right of the caj)- 
tor — "you are my negro, my slave; take him 
away; ship him in irons, and carry him away, 
and sell him." Now, Mr. President, (Mr. Fitch 
in the chair,) if I were to go into Indiana, and 
take your horse and bring him here, and I should 
sell him to the honorable Senator from Ohio, he 
would have just as good a right to him as I had, 
and not any better; he is your hoise for all that. 
So it is with the man who deals with fhe slave, 
either as captor or trader. He has not any more 
title than that. 

This is the sort of property tbat they wish to 



IG 



carry into this new Stale. I come to another 
question, Mr. President: who is going to do it? 
They aay the Dred Scott decision has carried it 
there aheady. Well, that will not operate after 
we form it as a State. Here in this Lecompton 
Constitution is a provision that slaves are to be 
carried into that State by authority of that Con- 
stitution. Who gives that Constitution vitality? 
The people in the Territory? Not at all. That 
Constitution is not worth the paper on which it 
is written, until we breathe the breath of life 
into it, and make it our child. I, for one, am not 
going to breathe upon it. It may remain a dead 
carcass for me, for many generations. It cannot 
exist unless we put it in force. There is a great 
deal of talk about this being the Constitution of 
the people of Kansas. Well, admitting that they 
formed its shape, sanctioned its provisions, put 
the words together; still Congress has got to 
breathe life into it, and Slavery will not exist 
there under that Constitution, unless you put it 
there. You cannot escape it. Now, I do not 
will it. 

Thus much, Mr. President, for the law. I now 
come to more general considerations which are 
going to govern me in regard to the vote I may 
give. I said a short time ago — I said it deliber- 
ately, I said it upon mature conviction, I said it 
under the full knowledge of what I did say, as 
something which I mean to stand by without 
committing anybody else — that I do object to 
Kansas coming into the Union as a slave State. 
I object to Slavery going into that Territory now, 
henceforth, and forever, unless the sovereign 
people, after it is made a State, in virtue of their 
sovereign power, choose to carry it there ; and 
I had almost said that I then would have objec- 
tion to it, because that State was a part of the 
territory covered by the old Missouri Compro- 
mise. You forced that compromise, Mr. Presi- 
dent. The people of the North did not want to 
take it; they did not want Slavery to go into 
Missouri ; they wanted that to be free territory ; 
but at the time she was about, to be admitted as 
a slave State, you put in a provision that all the 
rest of that territory should be free. Why have 
you not kept it? Why has not that compact, if 
you call it a compact, been kept? Wiiy this 
agitation, growing out of the question to force 
Slavery in there? Do you tell me that that 
compromise was unconstitutional? Suppose it 
was : I ask whether, when you made that pro- 
vision, and agreed fairly to it at that time' it 
now becomes you, if you can do it by the form 
of law, to wrest that territory from freemen? 
That is the point I make. I want to know why 
there has not been honor enough in the people 
of the other side to maintain that pledge, even 
if they were not obliged to do so, when they 
forced that division of the Territory, and said 
Slavery should not go to Kansas ? I want to 
know why tlie other side are not willing now 
that it should be a free State? 

Mr. President, it cannot be denied — I will not 
undertake to deny it — that on this side it is a 
contest for Freedom, and on that side it is a con- 
test for Slavery. That is the great contest be- 
tweea us. I like to meet this matter plainly. I 



have no concealments ; nothing to deny. It is 
the great cause of free labor against slave labor ; 
and it is the cause of free labor in that Territory 
or State against slave labor. I do not come here 
without a reason. I think 1 have a reason, 
coming here as a Senator, exercising a sound 
discretion, looking for the welfare of the old 
States, why Slavery should not go into Kansas ; 
because, if slaves go there, they get an undue 
representation. By the Constitution, in a slave 
State you add a certain portion of the slaves to 
make up your representation. Five slaves are 
equal to three white men for that purpose. If 
Slavery goes into Kansas, you will reckon the 
slaves in the representation ; and if you get 
enough there to elect a Representative, do you 
not gnt one vote in the other House, over and 
above the other free States, which rightfully you 
should not have? Hence I object to extending 
that right of representation. I know that pro- 
vision was put in the Constitution by way of 
compromise. I agree with what the gentleman 
from Virginia said on that point. Here were 
thirteen old States. They came together for the 
purpose of Union. Some of them had Slavery, 
and some had not ; and they agreed, under ihat 
Constitution, that the slave States should have 
representation so and so ; but I do not un- 
derstand that binds us to make all the States 
slave States, or to let Slaverj^ go into the free 
States, or to let Slates come into this Union with 
Slavery, and thus give them an undue represent- 
ation over the free States. I object to it on that 
account. 

Mr. President, I object to it for another reason. 
I am glad now to see the honorable Senator from 
South Carolina [Mr. Hammond] in his seat, be- 
cause I shall have occasion, in this part of my 
argument, to take notice of some suggestions 
which he threw out upon this subject. I object 
to slave labor, because you seek thereby to de- 
grade and vilify free labor. Your slave labor, 
in your own eyes, is disgraceful. You seek to 
bring it in contact with free labor, and thereby 
degrade free labor. I object to thai. I come from 
a section of the country where labor is respectable. 
I come from a section of the country where labor is 
honorable. I come from a section of the country 
where labor is dignified; where we seek to make 
it honorable ; where we seek to make it respect- 
able ; where we seek to make it dignified ; and 
when the honorable Senator from South Caro- 
lina, as he did the other day, gets up in his 
place, and says your white laborers are essen- 
tially slaves, or, as he afterwards modified it, 
" your hireling laborers and your operatives are 
essentially slaves," I desire, in the Senate house 
of the United States, to protest against it. Nine- 
tenths of all my people are working men; they 
are the men who cultivate their farms ; they are 
the men who work in mechanic shops; they are 
the men who are at the various trades ; they are 
the men and the women in the mills who are 
called operatives ; and when the honorable Sena- 
tor says they are essentially slaves, with all 
due respect, but with firmness in the truth of 
what I say, I tell him he states what is not true ; 
not in any offensive sense, but because he does 



17 



not understand my people so well as I do. I 
dare saj- he honestly thinks what he says. I 
accord to him that merit ; but what I wish to 
impress upon his mind is, that he is entirely mis- 
taken in regard to our laborers. They are in no 
sense slaves. I o^rant you, some of them are 
poor ; but does poverty make a man a slave ? 
Then some of the noblest men the nation ever 
had have been slaves. Why, sir, in my country, 
a large portion of the husbandmen cultivate their 
own acres ; they raise their corn ; they raise 
their potatoes ; they raise their wheat, their rye, 
their oats, and grass ; they take them to market 
and sell them ; they are the product of their 
labor. It is in some sort hireling labor; but I 
would like to ask the honorable .Senator from 
South Carolini! if he intends to call the agricul- 
tural people of ray State slaves? 

I know, Jlr. President, that the people are poor. 
There is the State of New Hampshire, God bless 
her ! She has not a bed of iron ore in her whole 
territory; she has not a bed of coal; she has not 
a mine of copper; she has not a mine of zinc; 
she has a poor agricultural soil ; she has water 
power; she has free hands and free hearts; and 
there is not a people in the Union more attached 
to the Union, and who live more comfortably 
and more happily, than that same people in New 
Hampshire; and I do not wish to hear them 
cpJled slaves. They are in no sense slaves. 
Why, you can sell your slave. Go and attempt 
to sell one of those freemen, and what would be 
the result? You c:in compel your slave to labor. 
Go and try to compel one of my countrymen to 
labor. You can take from your slave his liberty. 
Go and take from my countrymen their liberty, if 
you i)lease — try it. You can feed your slave as 
you choose. Go and administer food to the la- 
borer of the North. You can clothe your slave 
as you choose ; but the laborer of the North will 
say, I can clothe myself; I can feed myself; I am 
master of myself. You say he is a slave because 
he is poor, because he is obliged to labor. Is 
that it? Yes, sir; but he can labor where he 
pleases, where he can find work, and when he 
pleases ; and he can buy what food he pleases, 
what clothing he pleases; and is, in every sense, 
a freeman. 

I am satisfied, Mr. President, that the honora- 
ble Senator has mistaken the condition of that 
people. I do not know but that he has been 
there : but I feel very sure that he has not. I 
am ve'v certain he would not have said what he 
did, if lie had been there; and I am very certain, 
if he were to go there now, he would find a great 
many things very dilferent from what he antici- 
pates. Why, sir, he says : " Your operatives are 
essentially slaves." I come directly from a city 
where there are ten thousand of those operatives 
about me. I know their condition; T know their 
habits ; I know their mode of living ; I know their 
mode of thought. I know that some of these 
operatives lease their farms, and leave them be- 
hind them ; they come from neighboring towns, 
and go into the mills. They work as operatives 
because they can make more money at it. They 
hire their labor ; but are they slaves ? Why, 
they can buy as good a dinner as the gentleman 



from South Carolina, and as good a hat or as 
good a coat, and supply their wants as well. In 
what sense are they slaves? Perhaps the gen- ^ 
tleman can tell me. 

Mr. HAMMOND. I have already said that, on 
some future occasion, I will answer the remarks 
of those gentlemen who have taken exceptions 
to what I said a few days agx I do not choose 
to do so now. T on'y wish to say, that the Sen- 
ator from New Hampshire himself knows that he 
is depicting a state of things that does not exist. 
They do not get work when they want it, and a^ 
large portion of them cannot get a dinner when 
they want it. 

Mr. CLARK. I will not tell the gentleman 
that what he says is entirely wrong; but I will 
tell him that, if he'will go into my country, he 
will find that ninety-nine out of every hundred of 
them can not only get a dinner when they wish 
it, but would give him a dinner when he wants 
one, and would be glad to do it. The gentleman 
asked how we would like to have missionaries 
sent into every quarter of our country. I would 
say to the honorable gentleman that I would 
have no objection to them. I would like to have 
him go there, and see for himself, and he would 
find that what I state is true; I know it to be 
true ; but if he does go there, he had better be 
careful of one thing; and that is, not to talk 
about '-the mud-sills of society" to them ; be- 
cause, if he does, I am sure that about five feet 
ten inches — if that is the Senator's height— of 
mud-sill would be made of Southern timber. 

Now, Mr. President, it is this same sort of feel- 
ing that is engendered in the slave States against 
the North and free labor, that mMkes me so much 
opposed to the institution of Slavery going into 
Kansas. Let' Slavery go into Kansas, and exist 
there as it does in South Carolina, and how long 
would it be brfore our free people would go there 
and settle? They have been told that they were 
white slaves — es cntially so; that they are the 
mud-sills of society, and that cotton is king. 
Cotton king, sir! Cotton cannot make a hat; 
and these men, who rise and boast about cotton 
could not get a hat, if they did not buy it. Cot- 
ton does not make shoes ; cotton does not make 
pantaloons; cotton does not make a coat You 
can buy those articles ; but free labor can make 
a hat, shoes, pantaloons, or a coat. Your cotton 
king! So said the gentleman from South Caro- 
lina ; so said the Senator from Jlaryland, [Sir. 
Kennedy.] Cotton is king! It rules the world ! 
Sir, there is another king there besides cotton; 
humbug is king! 

Mr. President, I have sometimes been in the 
opposite end of the Capitol, and gone into that 
new Hall of Representatives, which is entirely 
cut off from the air by all the rooms around it. 
Not a breath can come from the windows, be- 
cause there are none opening into the Hall. I 
have then gone down below, and seen a steam 
engine and blower, with which they were pump- 
ing it up, and we hear the air passing up ; 
and I have sometimes wondered, if steam en- 
gines were invented when God made the world, 
whether He would not have ventilated it with 
a steam engine; whether he would not have 



18 



put the TTorld in an iron shell, with a hard 
case, and fixed outside a big steam engine to 
pump air into it. When I beard the gentleman 
the other day say that cotton was king, and that 
England would topple down if you did not raise 
cotton, I could not help thinking, if cotton had 
been grown at the time the Lord created the 
world, whether He would not have made the 
world of cotton. I wish to ask the honorable 
gentleman how the world got along without it? 
They got along up to the Christian era without 
cotton, and for some sixteen hundred years after- 
wards. How did the world get along without 
cot\on? Does anybody know? Can anybody 
tell? I have no fault to find with the South, 
except that I wish they would treat my people 
with courtesy, and that they would not stand up 
here in the Senate and call them slaves. 

Mr. President, pardon me a moment while I 
relate an incident; and the gentleman will see 
why we have some feeling on this subject. In 
the years lYVC and 1777, there lived in my State 
a young blacksmith, some sixteen or seventeen 
years of age. He got his living by pounding it 
out on the anvil with a strong arm. His country 
needed his services. New Hampshire wished to 
supply her quota of troops. He was drafted, and 
he went. He was at the battle with Burgoyne. 
When his time was out, he returned to his native 
State. He went to the anvil again. He hired 
out his labor; he was one of those whom the 
gentleman calls slaves, if any of them are. He 
hired out his labor to his neighbors ; he made 
for them nails ; he made for them plowshares ; 
he made for them everything that they wanted. 
When he got back from the war, the State of 
New Hampshire owed him some money for his 
service. His father said to him, "Benny, the 
State of New Hampshire is poor ; the country is 
poor ; do not call upon the State to pay you now ; 
let it be ; the country is illy able to pay it ; give 
your service to your country." He did not call 
for that pay ; he never called for it. His chil- 
dren after him never called for that pay. There 
it stands now, in the capital of New Hampshire, 
so many pounds, so many shillings, and so many 
pence, due to that humble blacksmith. His chil- 
dren will not come here or go anywhere else to 
call for that pay. They would rather have the 
record there, that their father gave that pittance 
to the State in poverty and necessity, rather than 
to have all the goodly stones of your Capitol ; 
and' yet it is the fortune of the son of that poor 
blacksmith to come into the Senate, and hear the 
Senator from South Carolina call his father a 
slave ! I did not think it would have been done. 
God knows, when I heard it, tears ran down my 
cheeks that he should be so vilified and abused, 
and I sit here to hear it. To Benjamin Clark, 
upon the record, stands the sum he earned and 
gave to his country ; and now, when his son 
comes into the Capitol of this same nation, which 
he fought to make free, a Senator stands up and 
calls him a slave ! I did not think I should have 
lived to have heard it. 

Why, Mr. President, there are in ray own State 
a great many excellent young women who work 
in the mills there. I suppose the gentleman calls 



them slaves. Now, let me tell you what I have 
known to be done, time and again. I have known 
the father of a family, from ill habits, or some 
other reasons, become impoverishpd. I have 
known the farm to get mortgaged. I have known 
that father to have daughters, and I have known 
those daughters to go to the mills. I have known 
them by thrift, prudence, and saving, accumulate 
money enough to free, that farm from mortgage, give 
it back to the father and mother, make a happy 
home again, and then to contribute to educate 
their brothers or sisters. I have known many 
of those honorable young women. The gentle- 
man says they are slaves. They earned not only 
enough to clothe and to feed themselves, but 
enough to educate themselves, and to fit them- 
selves to adorn some of the highest stations of 
life. 

Mr. President, I have another incident which 
I should like to relate. You all know the name 
to which I shall allude, and I wish to know 
if the honorable gentleman would call him a 
slave. There was a poor man once lived in my 
neighborhood. He cultivated a farm on the 
banks of the Merrimac; he lived by his hands. 
He lived by his labor in the fiold ; he had no 
menial servants. When the summer and seed 
time came, he went into the field and planted ; 
but when the country needed his services, those 
services were at her call. I speak now of the 
hero of Bennington, of the late General Stark, 
who lived close by my home ; who was buried 
by the side of the Merrimac. He was a laborer 
all his days. He was a man who fought for his 
country's liberty with Rogers's Rangers, and at 
Bunker Hill, and at Bennington, and yet he is to 
be called a slave. I have a higher example still, 
of a little printer's boy, who was born in Boston. 
He left his father, and went to Philadelphia. He 
hired out his services. AVas he a slave? Why, 
sir, he began by running away from Boston, and 
he ended by making the lightning come from the 
clouds at his bidding ; and he was a slave! 

Now, sir, I only ask the honorable Senator 
from South Carolina, before he uses these terms 
again towards the people whom I represent, to go 
and see them. I will be bound that they will 
treat him kindly ; I will be bound, if he will come 
and give them the opportunity of showing him 
how ihey live, what is their condition, and how 
happy they are in their homes, that they v.'ill for- 
give him what they might almost consider an 
insult, and set it down to the fact that he did 
not know them better. 

But the gentleman says they vote ; they hold 
your power. They do vote ; and they do hold 
the power. They put their men into office when 
they are fitted for it; and I will tell the honor- 
able gentleman that there is no class of people 
that can hold power more safely, no class of peo- 
ple who will exercise the power more securely ; 
and if your institutions are never overturneii. 
until these laboring men overturn them, they will 
exist for a great length of time. 

Why, Mr. President, history is full of reminis- 
cences on this subject of laboring men. I have 
said I come from a poor State. I mean a State 
poor in resources. She has, thank God, given 



19 



the world some men. She has free hearts, free 
heads, and free hands, in abundance. She is poor 
in some respects. Poor as she was, when you 
wanted a ninth State to adopt the Constitution, 
that poor Stale of New Hampshire was that ninth. 
These laboring men, who it is said are essentially 
slaves, were the same then as now. Those labor- 
ing men are the men who enabled you to adopt 
the Constitulion ; and now you tarn round, and 
vilify them as slaves! Mr. President, it ought 
not to be so. I wish it were not so ; but such is 
the issue upon us, and I am disposed to meet it 
calmly, to meet it quietly, and to meet it deter- 
minedly. 

Mr. GREEX. Will the Senator allow me to 
interrupt him? 

Mr. CLARK. Certainly. 

Mr. GREEN. I merely wish to call his atten- 
tion to the fact — it is a mere question of fact — 
that in 170i>, in th? S'ate ot New Hampshire, 
there were one hundred and fifty-eight slaves 
returned by the census. 

Mr. CLARK. I see it so set down, and I do 
not know but that it may be correct. But, sir, 
if they were ihere, I can only rejoice that they 
are not there now. I hope the time will come 
when every State that has them will find some 
way to be relieved of them. I do not know but 
that I might appeal to the Senator from Missouri 
to answer me, if he does not think that Missouri 
would be better without slaves, if she could get I 
rid of them. I will not ask the question. It 
may be unpleasant. 

Mr. GREEN. Not in the least. Ask me. 
Mr. CLARK. No, no. I will now take my 
tea, as it has just come in. I am sorry to have 
to be obliged to do it, but I cannot help it. 

[The honorable Senator had been furnished 
with tea and sandwiches, of which he proceeded 
to make a fitting disposition.] 

Mr. GREEN. While the Senator is at tea, I 
will answer that question, if he desires it. 

Mr. CLARK. 1 will yield the floor, while I 
take my tea, to the Senator. 

Mr. GREEN. I wish to make a remark in re- 
gard to the question which the Senator proposed 
to me. 

Mr. CLARK. Very well. Get up a little so- 
cial chat, while at tea. [Laughter.] 

[Here occurred various motions to adjourn, 
postpone, ifcc, and a speech from Mr. Toombs, of 
Georgia, proposing " to crush out this miserable 
faction" — the luiuority.] 

Mr. CLARK. When this interregnum occur- 
red, I was about to make some remarks upon 
a matter which is not, I think, usually touched 
upon in the Senate of the United States. I would 
not do it, were it not for some remarks which 
fell from the Senator from Virginia [Mr. Hunteu] 
on Friday last, and also some remarks which 
fell from the Senator from Maryland, [Mr. Ken- 
nedy.] I stand here to rebuke no oue, to cen- 
sure no one, to find fault with no one, but it did 
seem to me that some remarks that were made 
a few days since by those gentlemen were extra- 
ordinary. They were such remarks as, with all 
due deference and kindness to these Senators, I 
was sorry to hear. I do not know but that I 



might say, in charity, that I do not think the 
Senator from Virginia and the Senator from Ma- 
ryland would have made them, if they had be- 
stowed upon them a little more consideration. 
I certainly was pained to hear them. I stand 
here to avow it ; however unusual it may be in 
the Senate of the United States, I stuud here 
proud to say — no, sir, not proud, I do not feel 
proud — 1 stand here acknowledging the " higher 
law " as the true rule for the guide of men in 
their human affairs. I did not like to sit here in 
my seat, and hear the Senator from Virginia, 
and the Senator from Maryland, say they were 
opposed to the principles of the higher law. 
Now, let them tell me what they mean by the 
higher law ? If they mean the law of the God 
who governs us, then T am sorry to hear, in the 
United States Senate, any man say he is opposed 
to the principles of that law. I do not mean to 
say, as was said by the Senator from Virginia, 
that we are here to administer the higher law. 
That is not what I mean ; but I do not like to 
hear the higher law — I will speak of the law of 
eternal justice and right in that term — spoken 
of in that way. I stand here as a Senator, I hope 
we all do, to acknowledge that law. Sir, it 
would be a bitter mockery to put a clergyman 
in your seat to pray in the morning, and then 
stand up before night and deride the Giver of 
the law by which we all ought to be regulated. 
It is the law of eternal right I tell you, sir, m 
your place, I tell honorable Senators in their 
places, whatever they may think of it, whatever 
may be said in regard to it, that when the Sen- 
ate and the Government of the United States 
forsake the principle of that Liw — when they 
disregard it, and cast it away — we are on the 
road to ruin. Our fathers did not so. They ac- 
knowledged the hand that ruled them, and why 
should not we ? 

Now, sir, I acknowledge those principles. I 
do not ask you, I do not ask the Senate of the 
United States, I do not ask the House of Repre- 
sentatives, I do not aek the Government of the 
United States, I ask nobody to administer that 
law. The Author of that law will administer it, 
whether we are opposed to it or not ; but I do 
ask Senators, if ihey do not choose to recognise 
it, not to stand here in the Senate and scoff at 
it, if I may use the expression. 1 do not censure 
anybody, Mr. President ; but I do believe that 
the safety of the nation, the safety and salvation 
of man here, as well as hereafter, depend upon 
recognising those great rules of right which that 
law prescribes. That is ail I do mean. Idonotask 
you, I do not ask anybody, do go into their own 
hearts, and take their own conscientious notions, 
and administer them as the law. I liave no such 
idea. But 1 ask here, in the Senate of the United 
States, that we should not ignore those great 
principles cf right which mark and characterize 
that law. Mr. President, we have all got to be 
governed by it, and all our actions have got to 
be conformed to it, or punished by it, whatever 
we may say, and whatever we may do, and how- 
ever much we may oppose it. Why should men 
recognise it in almost every department of busi- 
ness, and here, in the Government of the United 



20 



States, where we need as much wisdom as any- 
where else, entirely ignore it ? I read no lesson 
to any Senator; I read no lesson to the Govern- 
ment; but I do ask that, if we do not choose to 
follow it, that such allusions should not be made 
to it. 

Mr. President, T may say to Senators, if I had 
been permitted to have gone along in my argu- 
ment, I should long since have concluded what 
I had to say; but I find no fault with any Sena- 
tor on either side of the Chamber. The sort of 
by-play that has been carried on, if I may be 
allowed the expression, has given me a little op- 
portunity to rest, though I am somewhat in the 
situation of the boy who undertook to hoe a gar- 
den, and when he stopped work to go to dinner, 
he left his hoe slanuiug against the wall, and some- 
body stole it ; and when he got back, he did not 
know where to begin. I had gone along through 
a part of my speech, and did not even set up my 
hoe, and I shall have to begin as best I may, 
and as near as I may to where I left off. 

I want to say one thing to the honorable Sen- 
ator from Georgia, [Mr. Toombs,] if he is in the 
Chamber, in regard to the expression that he 
uttered here in reference to "crushing out" this 
side of the House. They tell a story in my coun- 
try about a. gentleman, of whom we have all 
read, that had a cloven foot ; that he once un- 
dertook to straigheu a nigger's hair, and some- 
bod j^ inquired of him how he got along. He 
said, it was very busy work, though it was not 
very hard. I think the honorable Senator from 
Georgia will find his work both busy and hard. 
It cannot be done. Twen y honorable Senators, 
or more, as we have, belonging to the Republi- 
can party, cannot be crushed out by any legisla- 
tive force that can be brought against them. 

I do not know but that honorable Senators 
may be emboldened by the course which is ta- 
ken by other honorable Senators, and that he 
supposes, because certain Senators yield to any- 
thing they propose, that certain other Senators 
are going to jield to what they propose. I wish 
to tell that honorable Senator that different men 
are now coming from the North. We have had 
enough of those people who bow down and yield. 
We have got, if I mistake not, a President who 
bows down and yields to exactly what is said. 
I say to exactly what is said ; perhaps I should 
not put it precisely in that form ; but he bows 
to do what is required of him. We have got cer- 
tain Senators who bow down to what is required 
of them ; but I wish the honorable Senator from 
Georgia to understand that there are certain I 
Senators in this Chamber that are sent to the 
Senate, not to bow down, but to stand up. We 
have had enough of bowing down, and the peo- 
ple in my region have got sick of it. They will 
stand up, and they cannot be crushed out. The 
gentleman may put his heel upon their heads, 
or upon their toes, or anywhere else he pleases, 
but still there will be Senators in this Chamber 
demanding their rights and maintaining their 
rights ; and you may crush and crush, and the 
more you crush, the more those men will resist 
and stand firm. 

That is what I have to say upon that point; 



and if the process had gone on, and God had 
spared my life, I would have made this speech 
in the Senate, if it took ^o the day of doom ; but 
now, since there is a manifestation on the part 
of honorable Senators, thai when I have con- 
cluded this speech the Senate will adjourn, I 
have no disposition to prolong it. I will meet 
them half way; but when they show me their 
foot or their heel, I will show them my foot or 
my heel, and I will stand in my place, and 
.they connot drive me from it, nor kick me out 
of it. Gentlemen may jusi as well understand 
that in the beginning aj not. It is about time 
that this talk of crushing out should be stop- 
ped. It does not become, in my judgment, 
honorable Senators either to niter or to hear it. 
One thing I am sure of — it is to be a ver\- diffi- 
cult process. The man who attempts it will find 
that he has as much as he can do for one gen- 
eration. 

I had laid down various propositions in my 
own mind, why I would not vote for the admis- 
sion of Kansas under this Lecompfon Constitu- 
tion. One of those reasons was, that it will not 
give peace and quiet, and may engender civil 
commotion and war, destroy the confidence of 
many of our citizens in the Government of the 
United States, and lead to mischief. I desire to 
discuss that proposition for a short time, be- 
cause I may not get another opportunity to do 
so. Senators on the other side seem to think 
that Senators on this side wish to prolong the 
debate. I do not desire to do so. I only desire 
to say, fairly, candidly, and clearly what, in my 
judgment, is proper to the debate, and when I 
have said that, I shall sit down ; but I shall not 
sit down until I have said it. 

You may adopt this Lecompton Constitution, 
and the President says it will give you peace 
and quiet. In my judgmf nt, it will give no peace 
and quiet. Bring peace to whom? Peace to 
the country? How so? What has been the 
state of the country ever since you repealed the 
Missouri Compromise? And, if you would go 
back further, I ask, what has been the state of 
the country since you adopted the compromises 
in 1850 ? Then everything was to be settled. 
We have heard very many times of this peace 
and quiet. Adopt this measure, and there will 
be peace and quiet. The dove has come with 
the olive branch in its mout,b, and we have ta- 
ken the dove into the ark, and yet no petice and 
quiet have come. 

You tell us that peace and quiet will come 
now. I tell yoVi, in my judgment, this measure 
will bring you no peace nor quiet. The senti- 
ment of the country is aroused in a way that no 
admission of Kansas with this Constitution will 
quiet it. Why has it been aroused ? Because 
the country feared that, when you repealed the 
Jlissoui-i Compromise, you were going to make 
Kansas a slave State. That was the watchword. 
The object was to make Kansas a slave State. 
The country became alarmed. They said that 
was the object. A great many Senators in this 
Chamber said " no." An honorable Senator 
from North Carolina, Mr. Badger, said : 

" I have no more idea that Slavery will go 



2L 



' into the Territory of Kansas, than that it will j 
' go into Massachusetts.'' 

Senators talked about the law of climate ; that , 
the law which regulated slave labor, effectually 
prevented its Koiug there. They said slave labor 
would not, could not, flourish in Kansas. 

That was the argument. Everywhere I went, : 
"on the stump," and elsewhere, 1 endeavored to 
controvert it; because I saw, as 1 thouglit, that 
Slavery was to go into Kansas. When they said 
that Kansas was too far north. Slavery cannot 
go there, 1 replied to them, is Kansas any further 
Dorth than Missouri? and if Slavery is profitable 
in Missouri, it will be in Kansas. That was one 
reason why I wished to draw out the Senator 
from Missouri to-night. I asked him if he was 
•in favor of abolishing it in Missouri, and he at 
once said no ; that slave labor was profitable 
there, lie lold you that in raising hemp and 
tobacco it was nearly equal to the cotton crop in 
value, and lie did not want to get rid of Slavery 
in Missouri. If Slavery is piotitable in Missouri, 
why not in Kansas? Is it not entirely idle, then, 
to talk about the law of climate, or anything of 
that kind, excluding Slavery from Kansas ? There 
is no doubt a large majority of the people of the 
North — perhaps all of them — who do not desire 
Slavery to go into Kansas. I do not know but 
what I may say that some men from the slave 
States desire it not to go there, because slave 
labor ''crushes out" too much land, and countries 
settled by free labor are the most prosperous 
countries. , 

Mr. President, 1 could join in all that was said 
of the beautiful country of the South by the gen- 
tleman from South Carolina; 1 could join with 
him in speaking of the beautiful sea-coast, the 
winding bays, and harbors ;• I could join with 
him in praise of that magnificent river which 
sweeps tlie valley of that countrj' ; I could join 
with him in the fineness and richness of the soil, 
in the bright sunlight, and everything that makes 
that coui\try beautiful; but when I join with 
him in that, the refl'^ction would come to my own 
mind, if you only cultivated that country, as you 
might a large portion of it, by free labor — I have 
no doubt you might do so — how much more 
beautiful would it be than it is now! I agree to 
■the picture which he drew, and then, without 
taking the brush off,'I could add some very beau- 
tiful tints to it. I apply the same thing to Kan- 
sas. When you talk to me about Slavery making 
the South prosperous, or making Kansas pros- 
perous, I tell you with free labor it will be infi- 
nitely more beautiful and prosperous. 

There is another i>oint to which 1 want to di- 
rect the attention of Senators. Gentlemen of 
the South complain, that if Slavery is excluded 
from Kansas, they cannot go and carry their 
slaves there. Very true. Let me state the other 
side. If they go and carry their slaves there, 
free labor cannot go there to any great extent. 
You have got to exclude one or the other. 
Which shall be excluded, the one which renders 
the country more or least prosperous ? 

But I pass Irom thnt consiiieration, and come 
back to the proposition that the admii^sion of 
Kansas under this Constitution will bring you 



no peace. I ask you to turn your atlention to 
my own State, and see what has been the history 
of the question there, and then judge of other 
States like my State, whether you are going to 
have peace. The State of New Hampshire had 
been (and ceased to be we know not when) a 
Democratic State from 1829 to 184(3. She had 
not faltered once. She was as true as the needle 
to the pole, or the shining of the north star. She 
was always Democratic. When the great State 
of New York and other States faltered in 1840, 
or were swept away by a political whirlwimi. 
New Hampshire was true to the Democracy. She 
acquired the titles of the " Gibraltar of Democ- 
racy," the " back-bone of Democracy,'' the " un- 
terrified Democracy," because she was always 
true. Yet in 1846, when, upon the question of 
the admission of Texas, they proposed to defeat 
my colleague here, who had been a member of 
the otber House, for his vote there, New Hamp- 
shire, which for seventeen years never had varied 
in the least, " went square about," defeated the 
Democracy, elected my colleague to the Senate of 
the United States, and brought him first into 
this Chamber. That was done upon the Slavery 
question. 

The next year, the Democratic party passed 
certain Anti-Slavery resolutions, showed them- 
selves opposed to Slavery, and the State " went 
square back." On those resolutions she stood in 
1847, 1848, 1849, and 1850. She reiterated them 
in 1851 and 1852, and there she stood in 1853. 
But the very n°xt time you brought up this Sla- 
very question, and proposed to repeal the Mis- 
souri Compromise, in 1854, she " went square 
about again." They had not a majority of the 
Legislature in 1854, which would elect Republi- 
can Senators ; but they defeated the Democratic 
Senators. The next year, with a majority of one 
hundred, she re-elected my colleague and my 
predecessor, the late Mr. Bell, as Senators here. 
The next year she stood the same ; the next year 
the same; She has just spoken again ; and I 
wish you to hear what is said now in that State. 

Mr. President, when you proposed to admit. 
Kansas under the Lecompton Constitution, the 
Democracy of the State of New Hampshire be- 
came a little frightened. They began to take 
sides with the honorable Senator from Illinois — 
I if you will allow me so to speak — against Lecomp- 
' ton, and to take sides with the President. They 
passed a resolution a) proving the course of the 
Senator from Illinois, or against the Lecompton 
Constitution ; and they passed a resolution ap- 
1 proving of the Presidi-ut. They prayed "good 
Lord and good devil." They came to a vote. 
The Lord would not, or did not, help them : and 
the devil could not, for the Republicans were too 
many for him. It turned out that the Republi- 
cans carried the State by an increased majority" 
of two thousand votes. We carried it by three 
thousand before, and three thousand majority in 
our State is a pretty large raMJority ; but at the 
present election, which took place last week, on 
j last Tuesday, we increased the majority to five 
thousand. 

Mr. Si-; WARD. What was the aggregate vote. 

Mr. CLARK. The aggregate vote was about 



90, 



iixty-eiglit thousand. We are a very steady ar d 
conservative people. New Hampshire was a 
Democratic State from 1829 to 1846. She then 
went round and voted for my colleague. She 
resumed her place in 1847, and went on until 
1854. She changes only once in a generation ; 
she is so conservative, that when slie fixes her 
point, there she remains. She has fixed herself 
as a Republican State, and there she will remain. 
At this election, she has increased the majority 
two thousand votes. 

Mr. SEWARD. She will come up. 
Mr. CLARK. Yes, sir ; she will come clear 
up, if you keep on this warfare, and take in the 
whole people. But I wish to read to you, sir, 
and to honorable gentlemen who cry " peace 
peace; only admit Kansas with the Lecompton 
Constitution, aud you will have peace," an article 
irom the New Hampshire Patriot. That is, and 
has been, the State paper. Everybody who 
knows anything about New Hampshire and 
Isaac Hill, knows what sort of a paper it has 
been. It was his paper, and had been from time 
immemorial his paper. I desire to read a few 
lines, written the day after, or the day but one 
after, the recent defeat. Here is what it says : 

" This defeat of the Democracy is sufficiently 
' overwhelming to satisfy our most bitter oppo- 
' nents ; even the latest renegade must feel con- 
' tent with it. At the same time, when the pal- 
' pable cause of it is considered, it presents no 
' occasion for despondency on the part of true 
' arid intelligent Democrats. No one can fail to 
' see the cause; all admit it. The Kansas ques- 

' tion has again crushed us'' 

That is the "crashing out," sir. " The Kan- 
sas question has again crushed us" — ^^us, the 
Democracy. That is a different crushing from 
what the Senator from Georgia was going to 
give us. 

Mr. SEWARD. It is a bad rule that will not 
work both ways. 

Mr. CLARK. We know it works both ways. 
If we put our trust in Providence, and general 
principles are with us, we need not fv^ar .this 
crushing-out process. This article continues : 
— " with its ponderous, blind, unreasoning pow- 
' er. Before the Lecompton Constitution ques- 
' tion was brought before the country, our pros- 
' pects for success were highly flattering ; our 
' triumph seemed to be certain." 
Now, mark this: 

" That matter, with the course of the Admin- 
' istration upon it" — that is it — "fell like a wet 
' blanket upon the rising courage and earnest 
' zeal of our friends, and from that day we were 
' doomed ; our defeat was certain, and apparent 
' to all well-informed persons." 

Let me tell you, Mr. President — and let me 
tell honorable Senators who think that peace is 
coming from this measure — that when you have 
crushed out the majority in Kansas, you have 
not crushed out the Republicans of New Hamp- 
shire, nor the Republicans of the country. What 
will be the effect of passing this bill? You ad- 
mit Kansas with this Lecompton Constitution. 
She then comes into the Union under it, just as 
if you had not amended it, or put some condition 



to it; and what do you get then ? Where is M: 
John Calhoun ? Here, in this good city. V\'h 
did he not count the votes before this? Whi 
ha told j^ou he was not going to count them c 
declare them until Congress admitted the State 
when you got that difficulty settled, he woul 
count the vote. Oh, yes; "you admit Kansa 
' under the Lecompton Constitution ; let it corj: 
' in with Slavery in it ; then I will count you i 
' a Pro-Slavery Governor — a Pro-Slavery Legi: 
' ture, with all the machinery to move it ; an 
' then let me see you get a free State." The 
what sort of a difficulty would yon have ? Ha\ 
you any idea that the people are going to sul 
mit to it ? I put it to you — if they have bee 
rebellious, insurrectionary, and insubordinat 
while this question has been pending, and undi 
the rule of these Missourians, what do you thin 
they will be when you force upon them a Coi 
stitution which is obnoxious to them, and again 
their will? 

You send your Governor back, if he dares 
go. Let him attempt to put that slave-Sta 
Government into operation. They will drive hi 
out of the Territory. Let the Legislature a 
tempt to go into session. It may be — I do n 
say, because I do not know, I am ovAy forsha* 
owing events in giving my own views — that th( 
will assemble, or attempt to assemble. The pe 
pie drive them out of the Territory. What ther 
An application by the Legislature and Govern 
for troops to take care of them. What ther 
A collision between the troops and the peopl 
What then ? Why, peace in the country ! On 
admit Kansas, and we will all go to bed, and ] 
down and be peaceable and quiet ; and we w: 
not hear anything of this subject again ! 

I tell you, sir, that when you put this Lecom 
ton Constitution into effect, in my judgment yi 
give the people of Kansas the torch of civil wi 
and tell ttiem to go and light it. I am not certa 
but what the President desires this. There 
evidence here to show that the President of t 
United States does not wish peace. That is 
pretty grave charge to make ; but I think I c; 
prove it, and 1 prove it in this way : Mr. Stanti 
■wrote to the President, (and the President se 
the document here, or rather repealed in 1 
message what Mr. Stanton had said,) that t 
only way he could prevent bloodshed in the Te 
ritory, as he thought, was to call the Legisl 
ture together. He did call the Legislature t 
gether. What then ? Why, the President tur 
ed him out of office for doing the very thing th 
would prevent bloodshed. Now, Senators knc 
that the reason the President assigned for turni: 
him out of office, was .because he called the Le 
islature together; and then, afterwards, tl 
same President sends here his message, and 
that message says that Mr. Stanton said, t 
only thing to prevent bloodshed was to call th 
Legislature together ; and so it happened. 

Mr. President, I could continue for some tir 
longer to show you why you will get no pea 
in this Territory by passing this measure, but 
forbear. I have already occupied more of t 
time of the Senate than I ought to have dor 
much more time than I should have done und 



23 



other circumstances; but, with these hasty re- 
marks, I close with a warning to the Senate, if 
it becomes me to give the warning, that as you 
failed in 1830 to get peace ou this <(uestion, when 
you thought you would have it by the compro- 
mise measures; as you failed to get it in 1854, 
when you thought you would have it by the re- 
peal of the Missouri Compromise ; so now, in my 
judgment, you will fail, signally fail ; and I will 
tell you that the admission of Kansas under this 
Lecompton Constitution, instead of giving peace 
and quiet to the country, will add but another 
torch and another brand, which will be fanned 
into a flame. 

Now, Mr. President, I had it in my mind to 
say something further in regard to the speech of 
the Senator from Virginia, [.Air. Hunter,] which 
was delivered on Friday. If you will bear with 
me a moment, I will do so. I dissent entirely 
from the conclusion of that speech. Though it 
distinctly shadowed forth what certain gentlemen 
deemed to be the career of this country, I was 
com[)elled to dissent. We were told by the gen- 
tleman from Virginia that the eagles were already 
gathering to the banquet of empire, but that there 
was one eagle away, watching her nest. He 
spoke |as if it was desirable that young eagle 
should be to that banquet. I say, sir, let the 



young eagle watch her nest ; let her take cnre 
of her young ; let her not go to feed upon tho 
carrion of the Old World. 

I say more. Let her maintain her dominions 
here where she is, upon her own soil. If, in a 
proper and rightful way, she acquires more soil 
to be used in a proper way, so be it ; but I pro- 
test against that vision of empire which he 
shadowed farth when we should have possession 
of all the southern portion of this continent, 
marching through Mexico and the States of Cen- 
tral America to the Amazon and the equator, 
and governing the country by subjecting those 
nations to the stronger We might possibly do 
it ; but is it desirable ? If we can subject the 
negro, and hold him in slavery, in the same way 
we can subjugate the Mexicans and the various 
peoples in the Central American States. Sir, I pro- 
test for my country against any such destiny. I 
have no objection that she shall be enlarged in 
her borders, if it can be done justly ; but if her 
borders are to be enlarged in wickedness, in un- 
righteousness, by force, and by subjecting other 
nations to her will, to make them slaves, then I 
protest against it. I ask no such future for my 
country, because I remember, and it will ever 
prove true, that " the nation that sinneth shall 
die." 



LSS/ O*" CONGRESS 




016 085 219 7 



WASHINGTON, D. C. 

BUELL & BLANCHARD, PRINTERS. 
1858, 



